1826. GUTHRIE and Others, Assignees of DEVEREUX, a Bankrupt, Oct. 12th. v. CROSSLEY. ASSUMPSIT for money had and received. The commission was dated the 27th of January, 1826, and the assignment the 28th of February. The bankrupt's clerk proved, that the bankrupt stopped payment on the 5th of January: that on the evening of the 6th, he directed him to carry a 2007. Bank of England note, which he took from his cash-box, to the defendant Crossley. The witness was then asked what he said to the bankrupt upon receiving the note. of the 6th, sent particular creditor, saying it was to help him over his payments. Held, a 100%. note to a that such trader afterwards becoming bankrupt, his assignees might re Gurney, for the defendant, objected to the receiving cover the money evidence of statements made in the defendant's absence. ABBOTT, C. J., thought the question a proper one, as the inquiry was into the bankrupt's motives, for which purpose it might be important to hear the answers which he gave to the witness. The witness then stated, that he asked the bankrupt why he was to take the money to Crossley. The bankrupt answered, to help him over his payments. The witness said, "You may do as you please, sir; but, if I were you, I would do no such thing: I would not commit myself with any party, but would take care of what there is, and not make the effects liable in any way." The bankrupt said, I don't know what to do: I promised to send him 2007." The witness said, "At all events, send him only 100%.; it is as well to risk but half of it." The bankrupt said, "Well, do as you please." The witness accordingly took 100%. to the defendant, and received two post-dated cheques for the amount. It appeared from the cross-examination of the witness, that a bill was becoming due the next day, which the de in assumpsit, although it appeared that, at the time of pay ment, a bill for was becoming due, which had a larger amount been accepted by the creditor for the bankrupt's accommodation, and for which he had vide; and that promised to prothe creditorcould not be consider ed as the agent of the bankrupt to pay the money for the bill, because, he being a party to it, the payment operated pro tanto in his dis charge. 1826. GUTHRIE บ. CROSSLEY. fendant had accepted for the bankrupt's accommodation, for 1797., and for which the bankrupt was to provide; and it seemed from the balance-sheet, that on the whole account between the parties, the bankrupt was indebted to the defendant in a sum of 1487. Marryat, for the plaintiff, relied on the case of Poland, assignee of Melanscheg, a bankrupt, v. Glyn (a). ABBOTT, C. J., inquired of Mr. Gurney if he could distinguish that case from the present? Gurney submitted, that the defendant in this case was the agent of the bankrupt to make the payment for the bill. ABBOTT, C. J.-I cannot consider it in that light. If the defendant had not been a party, but the bill had been merely made payable at his house, then, like any servant, he might receive the money with one hand, and pay it over with the other; but as he is a party to the bill, it is for his discharge pro tanto. I cannot myself distinguish this case from that of Poland v. Glyn, but I will give you leave to move the Court for a nonsuit. Verdict for the plaintiffs. Marryat, and E. Lawes, for the plaintiffs. Gurney, for the defendant. [Attornies-Downs & G., and Walker & Co.] (a) 2 Dow. & Ry. 310. In that case it was held, that if a person in trade pays a sum of money to one of his creditors, and his affairs are in such a state that he may reasonably believe bankruptcy probable, but not inevitable, at the time he makes such payment, it is fraudu lent within the meaning of the bankrupt laws; and if bankruptcy afterwards ensues, the assignees may maintain assumpsit for money had and received to their use, against the person to whom such voluntary payment has been made. FAYLE v. BIRD. 1826. Oct. 12th. ASSUMPSIT on a bill of exchange. Drawer against Semble, that acceptor. The bill was drawn payable to order in London. The cause was not defended. ABBOTT, C. J., thought it necessary for the plaintiff to prove presentment at some place in London, which not being in a situation to do, he was Nonsuited. But leave was given for a motion to the Court to enter a verdict for the plaintiff. Hutchinson, for the plaintiff. [Attornies-Smith & W., and Robinson & B.] IN the ensuing Michaelmas Term, Hutchinson moved (a) This case decides, that where be averred in the declaration.a bill is accepted payable in London, 11 J. B. Moore. presentment of it there need not in assumpsit on in London, it is prove presentment at some place in London. MANVELL V. THOMSON. TRESPASS for seducing the plaintiff's niece and servant. A sum Oct. 13th. In trespass for seducing the plaintiff's niece and servant, per quod servitium amisit; evidence that the party seduced (being about 16 years of age) occasionally assisted in the household work, no servant being kept in the family, is sufficient to constitute the relation of master and servant between the uncle and niece; and such relation is not destroyed by the circumstance of the niece's being entitled, on her coming of age, to a sum of nearly 5001, of which the interest is applied in the mean time for her benefit. Proof in such case, that the niece, after her seduction and abandonment by the defendant, returned to her uncle's house, where she continued some time in a state of great agîtation, and received medical attendance, and was obliged to be watched, lest she should do herself some injury, is sufficient to raise the presumption of that loss of service by the uncle, which is necessary to maintain the action. 1826. MANVELL V. THOMSON, and her brothers and sisters, which was deposited in the Bank till they should come of age. She was brought up at her uncle's, and was for some time out at service, but returned to her uncle's house previously to the time when she was debauched by the defendant. It appeared that while she was at her uncle's, who had several children, she assisted them in the domestic business of the house, as they kept no regular servant. Denman, for the defendant.-The action is not maintainable : the evidence of service is too slight. The presumption of her being a servant to her uncle is rebutted by the fact of her having so large a sum of money; and the relation of uncle and niece is not of itself sufficient. ABBOTT, C. J.-Certainly the relation of uncle and niece of itself will not do: but I think there is enough in the evidence to constitute the relation of master and servant. Suppose a son has money enough to find himself in clothes, the relation of father and son is not destroyed by that circumstance. In this case, the uncle is in loco parentis. The smallest degree of service will do. It seems there was no servant kept; and it is reasonable to conclude, that all the members of the family assisted in turn in the performance of the household work. The cousin of the girl, and a surgeon, proved, that when she returned to her uncle's house, after she had been seduced and abandoned by the defendant, she was in a state of very great agitation, and continued so for some time: that she received medical attendance, and was obliged to be watched, lest she should do herself some injury. This was taken as evidence raising the presumption of loss of service by the uncle; and he had a The general evidence in cases of this description, to prove loss of Verdict - Damages 4007. service, is the fact of the birth of a child, and the sickness and con FAWCETT, Gent. One, &c. v. WRATHALL. ASSUMPSIT on an attorney's bill.-The charges were partly for preparing briefs for counsel to attend before the commissioners on the behalf of the defendant, and a person who was in partnership with him when they had become bankrupts. This partner was called as a witness for the plaintiff. Oct. 13th. In assumpsit on an attorney's bill, where the business done for two persons, charges are for partners; if one Marryat, for the defendant, objected to his testimony, a witness for the on the ground of interest. F. Pollock, for the plaintiff, stated, that, in a case from the Northern Circuit, the Court of King's Bench, a few Terms previously, had decided, that if a contract is joint, and only one is sued, if there be no plea in abatement, the party who is not sued is a competent witness even to prove the defendant's liability. ABBOTT, C. J., disallowed the objection. It appeared that separate bills had been delivered to the defendant and the witness, and that the witness had paid his. F. Pollock, for the plaintiff. Marryat, for the defendant. Verdict for the plaintiff. [Attornies-Fawcett, and Chester, Junr.] plaintiff. |
