1851. PARKER v. BRISTOL AND RAILWAY CO. Alderson, B.-The agent in such a case may be treated as principal.] Cur. adv. vult. POLLOCK, C. B., now said.-In this case, tried before my Brother Parke, and in which the plaintiff obtained a verdict for 91. Os. 4d., my Brother Kinglake moved for a rule to enter a nonsuit upon two points reserved at the trial. We are all of opinion that there ought to be no rule. The case of Ashmole v. Wainwright is a decisive authority that immediately governs the present case; and we therefore think, that if any question is to be raised as to the correctness of the doctrine there laid down, it must be by appeal to a Court of Error. It is not, however, probable that the present case will be carried to a Court of Error, as the amount in dispute is so small; and I certainly agree with the rest of the Court in refusing the rule upon the authority of the case in the Queen's Bench; but I must express the opinion, which if I were in a Court of Error I should more freely and at large express, that, although I now feel bound by the case, I regret the decision, for it seems to me to break in upon a broad, intelligible principle, namely, that the action for money had and received must be brought for a definite, clear, and certain sum, and not for some unknown sum, which is to depend upon the verdict of the jury, who are to decide whether the defendant has received the money or not. My Brother Parke wishes me to add, that the doubt belongs exclusively to my own mind, and not to that of the rest of the Court, who are satisfied with that decision, and altogether agree with it, not merely as a binding authority, but as agreeable to their own opinion and judgment. But, I think it right also to state, that, while I yield to that authority, I am not convinced by it, as I think the broad principle, that an action for money had and received must be brought for a clear and definite sum, is one which has prevailed I believe for many years in Westminster Hall, and is, I think, worth preserving. The other point was, that that part of the money which was received by the defendants not as principals but as agents, is not recoverable from them. But the case of Snowden v. Davis clearly lays it down, that an action for money had and received lies to recover back money which has been obtained through compulsion, even although it has been received by an agent who acted for his principal. That, therefore, disposes of the second point, on which we entertain no doubt. There will therefore be no rule. Rule refused. 1851. PARKER v. BRISTOL AND MOSES SYMONS v. MAY. ASSUMPSIT on four bills of exchange drawn by the There June 17. By the 5th section of the 11 & 12 Vict. c. 21, (the Insolvent Debt imprisoned for debt may petition the Conrt for relief; and by the 6th section, he is required to deliver into Court his schedule in the form contained in the schedule to the Act; and the petitioner's schedule must contain a full and true description as to all matters required to be set forth therein, so far as the same can be described or set forth. The form given by the schedule to the Act, inter alia, contains a heading "for the names and description of creditors of claimants, and their present or last residence." The defendant, residing in India, drew certain bills of exchange on Messrs. R., I. & Co., which were purchased in that country for and on account of the plaintiff, Moses Symons, residing in England; and the bills were indorsed by the defendant, and transmitted to the plaintiff. The defendant, afterwards becoming insolvent, petitioned the Insolvent Court in India, and described the debt on the bills of exchange in his schedule as follows:-" Creditor, A. M. Symons, for the following bills of exchange (describing them), drawn by us upon Messrs. R., I. & Co. in favour of Moses Symons." It appeared that a person of the name of A. M. Symons resided at Calcutta, in India; but it was not shewn that he was in any way connected with the bills:--Held, in an action by Moses Symons upon the bills that the defendant's description of the plaintiff's debt in his schedule was insufficient within the 11 & 12 Vict. c. 21, and, therefore, that the defendant was liable on the bills. 1851. SYMONS ". MAY. Plea, that the defendant, being a trader in Calcutta, applied by petition to the Insolvent Court there, and delivered into the Court a schedule containing a full and true description of all matters and things required to be set forth therein, and of the said bills of exchange in the declaration mentioned, and of the then holder of such bills, to wit, the plaintiff. The plea then set out the defendant's insolvency, and his discharge from all debts, according to the provisions of the 11 & 12 Vict. c. 21, (the Insolvent Debtors Act for India).-Verification. Replication, that the defendant did not deliver in the said court the said supposed schedule modo et formâ.— Issue thereon. At the trial, before Pollock, C. B., at the London Sittings after Hilary Term last, it appeared that, in the year 1847, at the time the bills in question were drawn, the plaintiff resided in London, and the defendant was a partner in a mercantile firm and resided in Calcutta. The bills were drawn by the defendant in India, were purchased there by the plaintiff's agent, and transmitted to the plaintiff in this country. In 1848, the defendant petitioned the Insolvent Debtors Court in India for his discharge, and delivered his schedule into court, in which the plaintiff's debt was described as follows:-" Creditor, A. M. Symons, for the following bills of exchange (describing them), drawn by us upon Messrs. Reid, Irving, & Co., in favour of Moses Symons." The evidence shewed, that a person named A. M. Symons resided at Calcutta, but it did not appear that he was in any way connected with these bills. On the part of the plaintiff it was contended, that the description of the debt in the schedule was not sufficient; and that the defendant was not discharged as to the debt. The learned Judge was of that opinion, and directed a verdict to be entered for the plaintiff, reserving leave to the defendant to move to set that verdict aside, and to enter a verdict for him, if the Court should be of opinion that the description of the debt was sufficient. In the present Term (June 7) Humfrey (Willes with him) shewed cause. The defendant's description of the debt in his schedule is insufficient, and, consequently, he is not discharged under the 61st section of the 11 & 12 Vict. c. 21 (a). The residence (a) Sect. 5 enacts, "That from and after the time appointed for this Act to take effect any person who shall be in prison within the respective limits of the towns of Calcutta, Madras, and Bombay, upon any process whatsoever, for or by reason of any debt, damages, costs, or money, which such person is solely or jointly with any other liable to pay, or for or by reason of any contempt of any Court whatsoever for non-payment of money only, or of costs, taxed or untaxed, either ordered to be paid, or to the payment of which such person would be liable in clearing such contempt, or in any manner in consequence of or by reason of such contempt, or who shall reside within the jurisdiction of any of the supreme Courts at Calcutta, Madras, and Bombay respectively, and, being indebted on account of any such liability as aforesaid, shall be in insolvent circumstances, may at any time apply by petition to the Court for the Relief of Insolvent Debtors within the presidency where such insolvent debtor shall then be, for the benefit of the provisions of this Act, which petition may be in the form in the schedule (A.) to this Act, or the schedule (B.) to this Act, (as the case may require), with such addi tions and variations as may be necessary to adapt it to the particular case; and such petition shall be subscribed by the said prisoner, and shall forthwith be filed in the said Court to which it shall be presented; and if any such person as aforesaid shall be jointly indebted, it shall be lawful for them to apply jointly by petition, in such manner as is hereinbefore mentioned; and under such joint petition the joint estate and the separate estates of such petitioners shall be dealt with and distributed." Sect. 6 enacts: "That where any such petition for relief as is aforesaid shall be presented by any such insolvent to the said Court for the Relief of Insolvent Debtors, the party presenting the petition, at the same time, or within such further time as the said Court may deem reasonable, shall deliver into the Court a schedule in the form in the schedule (C.) to this Act annexed, with such additions and variations as may be necessary to adapt it to the particular case, containing a full and true description as to all matters and things required to be set forth therein, so far as the same can be described or set forth; and the said schedule shall be subscribed by such petitioner, 1851. SYMONS v. MAY. 1851. SYMONS v. MAY. of the creditor is not given as required by the form given in the schedule to the Act. The description of A. M. Sy do declare, I the said that this my schedule doth contain a full and fair description of me, as to name, trade, profession, and abode, and of the debts due or growing due from me, and of all and every person to whom I am indebted, or who, to my knowledge and belief, claim to be my creditors, together with the nature and amount of such debts and claims respectively, distinguishing such as are admitted from such as are disputed by me; and also a full, true, and perfect account of all my estate and effects, real and personal, in possession, reversion, remainder, or expectancy, and also of all places and employments of benefit to me, held by me, and also of all pensions and allowances which I have in possession or reversion, or which are held by any other person for me or on my behalf, or of or from which I derive or Names and Description No. of Creditors, of Claimants, and their present or lust Residence. may derive any manner of benefit, and also of all rights and powers which I am, or any other person in trust for me or for my use or benefit are in any manner whatever possessed of or interested in or entitled unto, or which I, or any other person in trust for me or for my benefit, have any power to dispose of, charge, or exercise for my benefit or advantage; together with a full, true, and perfect account of all the debts due or growing due to me or any person in trust for me or for my benefit or advantage, either solely or jointly with any other person, and the names and places of abode of the several persons from whom such debts are due and growing due, and of the witnesses who can prove, or other evidence to prove, such debts, so far as I can set forth the same; and that this my schedule doth fully and truly describe the wearing apparel, bedding, and other such necessaries, and working tools and implements, of myself and my family, which are excepted by me from the operation of the Act relating to insolvents in India, together with the value of such excepted articles respectively. |