1825. MAVOR บ. PYNE. Upon this state of facts, it was submitted on the part of the defendant, that, under the stat. 46 Geo. 3, c. 135, the issue as to the release must be found for him. -- BEST, C. J. — I am of opinion at present, that it is proved, that the release was executed after an act of bankruptcy, and, therefore, that issue must be found for the plaintiff. Verdict for the plaintiff-81. 8s. Spankie, Serjt. and Moody, for the plaintiff. Vaughan, Serjt. and Comyn, for the defendant. [Attornies-Van Sandau & T., and Walker, R. & R.] IN the ensuing Michaelmas Term, Vaughan, Serjt. moved for a rule nisi for a new trial, on the ground that the agreement was within the statute of frauds; but the Court were of opinion, that the case was distinguishable from that of Boydell v. Drummond, on which he had founded his argument, and that the statute did not apply. He then went on the point reserved as to the sufficiency of the petitioning creditor's debt. BEST, C. J. observed, that Quantock v. England was in point, in its favour; and that the case in 15 Vesey, confirmed Quantock v. England, and overruled a holding at Nisi Prius, which was contrary to it. Vaughan, Serjt.—We could not plead the statute of limitations, and therefore are in the same situation as if it had been pleaded. BEST, C. J.-A co-creditor may say that a man, whose debt is barred by the statute of limitations, shall not prove under the commission; and that objection must be made in Chancery by petition. In this case, the bankrupt does not make the objection; and why should a party be allowed to do it, standing in the situation of this defendant? GAZELEE, J.-The statute of limitations is for the benefit of the debtor, that he may not be harassed; but a person situated as this defendant is, has no right to use it as an objection to the debt of another person. The point as to the release was then mentioned; but the Court were of opinion, that, on the state of the pleadings, that question had received its proper determination at Nisi Prius; and therefore, upon all the points, the Rule was refused. 1825. MAVOR v. PYNE. MUNN v. GODBOLD and Another. COVENANT on a deed, dated in September, 1819. The declaration stated, that the defendants had agreed to appoint the plaintiff their agent for the sale of their vege a table balsam, on the continent of Europe; and that, in con- It appeared, that there were two parts of the deed declared on, one executed by the plaintiff, and the other by the defendants. The part executed by the defendants was lost from the plaintiff's custody, and was not forthcoming If Nov. 2d. there are two parts of a cove nant under seal, one of them on a stamp and executed by the defendant, and the other a counter-part not stamped, and the party who had the time of bringing an action upon it has lost it, and it cannot be produced, he may prove the draft as secondary evidence, and is not compellable to take the unstamped count er part, subject to the objections that may be made to it, al though he has given notice to the defendant to produce it at the trial. 1825. MUNN บ. GODBOLD. at the trial. It had been properly stamped. The counterpart in the possession of the defendants was in Court, ready to be put in; and notice had been given to them to produce it. It was stated not to have any stamp. For the plaintiff, the attorney, who prepared the deed, was called to give evidence of its contents from the draft. He proved, that it contained a true copy of the instrument, in the state in which it was signed. Taddy, Serjt. objected to the admissibility of this evidence. They are not at liberty to give the draft in evidence, but must put in the counterpart. They have given us notice to produce it; and we are willing to put it in. The deed is not perfect without the counterpart; and the counterpart is the next best evidence, when one part is lost. It is so in the case of a lease. Roe dem. Urry v. Harvey, 4 Burr. 2484 (a). BEST, C. J.-How could they get at this counterpart for the purpose of having it stamped? Taddy, Serjt.-They might move in Court for the other party to attend with it at the Stamp-office. BEST, C. J.-The last decision in the Common Pleas is, that a party is not compellable to produce a deed, unless he holds it as a trustee. Pattison, on the same side, cited the cases of Rex v. Castleton, 6T. R. 236, and Rippener v. Wright, 2 B. & A. 478. Vaughan, Serjt. Their counterpart gives us no cause of action. We declare on the instrument executed by them; and we are to produce that or give secondary evidence of its contents. We are not to be driven to their counterpart. It is said, that the counterpart is better evidence than the draft; but it is not stamped; and therefore it is of no validity at all. The cases go this length only, that, where there is only one instrument, and that is in the hands of one of the parties to it, he shall be compellable to produce it, because he holds it as a trustee for both. BEST, C. J.-I shall admit the draft as secondary evidence. Verdict for the plaintiff. Vaughan, Serjt. Chitty, and Lee, for the plaintiff. Bosanquet and Taddy, Serjts. and Pattison, for the defendants. [Attornies-Steel & Nicol, and J. & H. Lowe.] 1825. MUNN v. GODBOLD. In the ensuing Michaelmas Term, Bosanquet, Serjt. obtained a rule nisi for a new trial, on the ground that the draft ought not to have been admitted as evidence under the circumstances. He cited, in addition to the cases mentioned at Nisi Prius, Rivers v. Rivers, 2 Atk. 21. The question came on to be heard in the course of the same Term; and the Court, after argument, decided, that the draft was properly admitted in evidence, and therefore Discharged the rule. 1825. COURT OF KING'S BENCH. Sittings at Westminster, after Michaelmas BEFORE LORD CHIEF JUSTICE ABBOTT. Dec. 5th. If the attorney for an execution creditor, on being informed of a claim by the landlord for rent, direct the sheriff's officer to withdraw the he do so, and the plaintiff sue out a ca. sa. for the debt, such execution creditor cannot bring an action against the sheriff for falsely STUART and Another v. WHITAKER and Another, Sheriff of Middlesex. CASE against the late sheriff of Middlesex for a false return to a writ of testatum fieri facias, sued out against James Phillips, to levy the sum of 207. 10s. at the suit of the plaintiffs. The declaration stated, that the sheriff returned, that they had caused to be seized divers execution, and goods to the value of 401. and no more; and that, after the seizure, they received notice from the landlord of the premises whereon the goods were seized, that the sum of 361. remained due to him for arrears of rent, which rent did not exceed one year's rent of the premises, and notice from the collector of taxes, that 97. 13s. 6d. was due for king's taxes; and "they further certified and returned, that the said rent and taxes, so claimed as aforesaid, were, at the time of such seizure, due and in arrear, and that the said plaintiff's had not paid the rent and taxes due as aforesaid, pursuant to the statutes," &c.; whereas, in truth and ed landlord had in fact, the defendants did not receive notice from the the rent claimed; landlord of the premises, whereon, &c. that the sum of 361. or any other sum remained due for the rent, &c.; and whereas, in truth and in fact, the said rent was not, nor was any part thereof due at the time of the seizure, not know what by means whereof the plaintiffs were greatly injured, &c. Plea-The general issue. returning to the fi. fa. that so much rent was due; and he will not be entitled to recover though he shew that the suppos not a right to and that the attorney, at the time he directed the officer to withdraw the execution, did the landlord's title was. The usual formal proofs having been adduced for the plaintiff, it was shewn by a lease, dated April 21st, 1754, |
