.1803.

Ex-parte WHALLEY in re

being embarrassed, called his creditors together, when it was agreed, that an assignment of his effects should be made to trustees. The petitioning creditor for the commission was appointed, and acted as a trustee, although WHALLEY. he never signed the deed, it being agreed by all the creditors that he should not sign, in order that he might take out a commission of bankruptcy in case Whalley, the bankrupt, should not act properly.

Mr. MANSFIELD and Mr. STEELE, in support of the petition.

Mr. ROMILLY and Mr. HEALD, for the petitioning creditor. "It is not necessary that a deed of assignment should either be for the purpose, or have the effect of delaying the payment of debts, in order to make it an act of bankruptcy. There has been perfect good faith in the whole of this transaction, nor is it even alleged, that the bankrupt has been imposed upon. His committing a clear act of bankruptcy was only prevented by the execution of this deed. Cited Bamford v. Baron *.

Mr. HEALD." In that case the party was ignorant that he was committing an act of bankruptcy, and there was no privity in the petitioning creditor."

Lord CHANCELLOR. "It has long been settled, that where a man executes a deed of assignment, he cannot make such a deed an act of bankruptcy by his debtor; and if he acts under it, it is the same as if he had actually signed. I am therefore of opinion, that this commission cannot be sustained. The case of Bamford v. Baron, which I argued in the King's Bench, went upon many more grounds than those stated in the report."

1303.

In re HALL ex-parte DODS.

In re HALL ex-parte Dops.

Where a docket is struck for a commission of bankruptcy, although the commission is not issued within the time limited by the general order, yet a second commission cannot be sustained without an order of supersedeas for the first.

THIS was a petition to supersede a prior commission of bankruptcy issued against Hall. The docket had been struck for the first commission, but no orders for sealing it had been given in due time. It consequently became supersedeable, and a second docket was struck by the petitioner, but no order of supersedeas for the first docket was actually drawn up. Two commissions had therefore issued, and the petition prayed, that the former one might be superseded, on the ground that it had not been issued within the time limited by the general order.

But the LORD CHANCELLOR refused the prayer of the petition, being of opinion that an order of supersedens was necessary in the first instance, and before the second commission was ordered to be sealed.

IN THE EXCHEQUER.

Michaelmas Term, November 28.

1803.

HOLLOWAY versus SHAKSPEARE,
THE SAME Cversus TUFTON.

THE statutes 9 Anne, c. 14. s. 3 and 4. and 18 Geo. II. c. 34. 8. 3. do not authorise courts of equity to hold cognizance of a bill by a common informer for a discovery of money won at play; for the latter statute impowers the court to proceed to a decree, and a court of equity does not decree a penalty.

BILLS were filed in this court by the plaintiff, one Richard Holloway, a common informer, against the above defendants, praying a discovery of certain sums won by them at play contrary to the statutes in force against gaming. The defendants demurred to the bills, insisting that the answer might tend to render them liable to penalties. It appeared that the plaintiff was not the loser of the money, and the object of filing the bills was to enable him to bring actions against them for the recovery of the penalties. The cause, after hearing, stood over for judgment, and now the opinion of the court was delivered by

The LORD CHIEF BARON, after stating the case. "It has been insisted, on the part of the plaintiff, that the answer required by this bill is authorized and required by the statutes 9 Anne, c. 14. s. 3, and 18 Geo. II. c. 34. The first of these statutes, after directing in the second clause, that the loser of 101. may sue the winner for the money within three months, and "that after that time, "if the loser do not sue, any other person may, and

may recover, with treble costs; one moiety to the in"former, the other to the poor;" enacts, "that, for the “better discovery of the money or things so won, and to "be sued for and recovered as aforesaid, all and every the

HOLLOWAY

versus

SHAKSPEARE.
In Scacc.

1803.

HOLLOWAY

versus

SHAKSPFARE.
In Scacc.

66

persons, who, by virtue of this act, shall be liable to be "sued for the same, shall be obliged and compellable to answer upon oath such bills as shall be preferred against "them for discovering the sums of money, or other thing, so won at play as aforesaid *." Provided "that upon "the discovery and re-payment of the money, or other thing, so to be discovered and repaid as aforesaid, the persons who shall so discover and repay the same as "aforesaid, shall be acquitted, indemnified, and dis "charged from any further or other punishment, for"feiture, or penalty, incurred by the playing for or win "ning such money, or other thing so discovered and re "paid as aforesaid." The latter statute recites the for mer, but that no provision is made or authority given

"

to any court of equity to decree the same (money of "other thing won) to be paid;" and then enacts," that in case any bill shall be filed in any court of equity against any person for any sum of money won contrary to the "former act, such court, wherein such bill may be filed,

may proceed and decree thereupon, and enforce such "decree as shall be made in pursuance thereof, in the "same manner as is practised in other causes upon bills "and answers depending in the courts where such bill "shall be so brought." His lordship then took a clear and succinct view of the policy and object of these statutes, and made some observations on the very great importance of the rule, that no defendant shall be bound to criminate himself and concluded, that it by no means appeared that the object of these clauses was to enable common informers to have a discovery, in order to sue for penalties; which would be contrary to the general principles of law, and the ordinary jurisdiction of the court; but rather to give courts o equity cognizance of a bill for discovery, at the suit of the loser, who might otherwise have no means of recovering

1803.

versus

That they did not apply to the case of a common informer, he said, clearly appeared from the clause empowering HOLLIDAY the court to proceed to a decree; for a court of equity could not make a decree for a penalty, by statute, to a common informer.”

JUDGMENT FOR THE DEFENDANTS.

SHAKSPEARE,

In Scace.

CASES,

ARGUED AND DETERMINED

In the Courts of King's Bench, and Chancery,

IN HILARY TERM,

In the 44th Year of the Reign of King George III. A. D. 1804.

DOVER versus MAESTAERS.

ACTION for penalties for bribery: Venue laid in York: Motion to change the venue to Hull, the plaintiff having some causes of action which arose in Hull, but being out of time to sue in a new action, and it having been his intention, originally to proceed for the offences in Hull: Held, that the venue may be changed in a penal action, where the statute of limitations has run, notwithstanding other causes of action,

1804.