1827. TAYLOR v. BRIGGS. lied on; and the question I shall leave to the Jury is —what was meant by the term bale? The Jury, which was special, found, that a Scarlett, Marryatt, and Campbell, for the plaintiff. In the ensuing Hilary Term, Tindal, S. G., obtained a rule nisi for a new trial, on payment of costs, for the purpose of adducing further evidence; but that rule was afterwards discharged. See the case of Wood, Assignee of Hall, v. Wood, ante, Vol. 1, p. 59. COURT OF COMMON PLEAS. Adjourned Sittings at Westminster, after Michaelmas Term, 1826. BEFORE LORD CHIEF JUSTICE BEST. 1826. Dec. 1st. An assignee of a lease under the Insolvent Debtor's Act, is entitled to a rea sonable time in which to decide LINDSAY V. LIMBERT. COVENANT for rent. The declaration stated a lease from the plaintiff to a person named Biddle, dated the 23d of September, 1823; and then alleged, that after the making of the said lease, and during the term thereby whether he will granted, to wit, on the 19th of December, 1825, all the the lease estate, &c. of Biddle in the premises demised, with the ing that time he appurtenances, by assignment thereof then and there lesteps as he may gally made, came to and vested in the defendant: wherethink necessary upon and whereby the said defendant then and there enof trying to ren- tered into and upon all and singular the said demised preder the property mises, and became and was possessed thereof, and con or not, and dur may take such for the purpose productive. tinued so thereof possessed from thence until and at and after the time the rent thereinafter mentioned became due and payable, &c. The plea was, that the estate, &c. of Biddle, in the said demised premises in the declaration mentioned, by assignment thereof legally made, did not come to and vest in the defendant in manner and form as the said plaintiff had in his declaration alleged. The defendant was the assignee, under the Insolvent Debtor's Act, of Biddle the lessee. The assignment to him under the act was made on the 19th of December, but the defendant did not totally abandon his connection with the lease and premises till the 17th of May following; and in the interval he tried to let the premises, but was not successful. There was contradictory evidence as to whether he had accepted the lease in an unqualified or merely a conditional manner. Wilde, Serjt., for the defendant, cited the case of Copeland v. Stevens (a), and contended that under the stat. 1 Geo. 4, c. 119, an assignee was entitled to a reasonable time for the purpose of considering whether he would accept of the lease. Taddy, Serjt., for the plaintiff, contended that the only question was one of possession, which was admitted by the defendant's plea, inasmuch as that plea only negatived the assignment and not the possession. He cited Croft v. Peck (b). (a) 1 B. & A. 593.-The Court there decided that "the general assignment of a bankrupt's personal estate under his commission, does not vest a term of years in the assignees, unless they do some act to manifest their assent to the assignment as it regards the term, and their acceptance of the estate, rents, &c.; and therefore, 1826. LINDSAY v. LIMBERT. 1826. LINDSAY v. LIMBERT. BEST, C. J. left it to the Jury to say, First, whether the defendant had or had not accepted the lease conditionally, in order that he might see if he could turn it to any advantage; and Secondly, if he had so done, whether the time he had kept it was a reasonable time, for the purpose of seeing what he could do with it. The Jury found for the defendant, establishing the conditional acceptance, and the reasonableness of the time. Leave was given to the plaintiff to move to enter a verdict. Taddy, Serjt., and D. Pollock, for the plaintiff. [Attornies-Spike, and H. H. Duncombe.] In the ensuing Hilary Term, Taddy, Serjt., moved, pursuant to the leave given. In addition to the cases cited at the trial, the case of Turner v. Richardson (a) was mentioned. The Court said, that the case of Croft v. Peck was not in point, as it was decided on the ground that the provisional assignee, being the public officer of the court, had no discretion; and that Turner v. Richardson was precisely in point. a public officer, must, by the mere terest the insolvent had in his property so assigned. (a) 7 East, 335. Dec. 2d. ter he became HUBERT, Gent., one, &c. v. MOREAU. A person, af- ASSUMPSIT for work and labour. Pleas-First, nonbankrupt, and assumpsit; and second, that the defendant became bank before he had got his certifi cate, called at the office of his attorney to whom he was indebted, and wrote there, the attorney not being at home, a letter promising to pay him a sum of 100%. The only signature was a flourish of the pen, which it was contended by the plaintiff formed the letter M., the initial letter of the defendant's name: Held, that if it was an M., it was not a sufficient signature under the statute, 6 Geo. 4, c. 16, s. 131. Semble-that if such a letter be without date, the time when it was written cannot be proved by parol evidence. rupt on the 4th of July, 1826. The plaintiff was an attorney, and the defendant a Frenchman, named Pierre Armand le Comte de Fontaine Moreau. It appeared that the defendant, being indebted to the plaintiff for business done, called at his office, and wrote a letter in French, which he left for the plaintiff, he not being at home. The letter requested the plaintiff not to be angry at the defendant's not bringing him any money, mentioned an expectation of getting some by an arbitration which was then in progress, and concluded with a passage, of which the following is a translation: "I can, however, assure you for certain, that before the 15th of next month, I shall be able to let you have 100l." This letter was not dated, and the question of fact in the cause was, at what time it was written; it being contended on the part of the plaintiff that it was written on the 23d of August: and on the part of the defendant, that it was written on the 31st of May. In the first case it would be after, and in the second before the defendant's bankruptcy. For the purpose of shewing that it was written on the 23d of August, a clerk of the plaintiff's was called, who stated that he was present on that day while the defendant was writing it. Wilde, Serjt., for the defendant, objected to this mode of supplying the date by parol. By the 6 Geo. 4, c. 16, s. 131 (a), it is provided, that a bankrupt shall not be liable upon any promise to pay a debt discharged by his certificate, unless such promise be in writing. The ques (a) The section is as follows:"And be it enacted, that no bankrupt after his certificate shall have been allowed under any present or future commission, shall be liable to pay or satisfy any debt, claim or demand, from which he shall have been discharged by virtue of such eertificate, or any part of such debt, claim or demand, upon any con- 1826. HUBERT v. MOREAU. 1826. HUBERT บ. MOREAU. tion as to when the letter was written is the material fact in the cause, and that fact is sought to be proved by parol, in the very teeth of a statute which guards so carefully against proving the promise by parol. If such evidence is allowed, it will open a door to fraud, by giving a party in possession of a letter written before a bankruptcy, the opportunity of insisting that it was written after. BEST, C. J.-The strong inclination of my opinion is, that this is a good objection; but I will not decide it here; but let the cause go on, and leave it for the decision of the Court. The letter had no name attached to it, but something that looked like an M.; and Wilde, Serjt., contended that it could not be said to be signed as required by the statute. It was handed to BEST, C. J., who, upon looking at it, observedIt may be an M., or it may be a waving line: but if it be an M., I am of opinion that it is not sufficient, as the statute requires that the promise should be signed. It is not the signature of a man's name. I have no doubt upon the subject; but for the sake of the character of the parties I will allow the cause to go on. Taddy, Serjt.-Perhaps your Lordship will allow us to produce evidence to shew, that the defendant usually signed in that way. BEST, C. J.-No, I will not. Wilde, Serjt., then further objected, that the promise contemplated by the statute, was one to be made after a man had obtained his certificate, and not before, when he was not discharged from his legal liabilities (a). (a) He also objected, that the promise in the letter was not a promise to pay the original debt, which alone would support the |
