tion was the other way; for the petitioning creditors had continued to supply the bankrupt with money after the first act of bankruptcy. Marryatt and Comyn, for the plaintiffs. 143] *LATHAM et al. v. STANBURY et al. A carrier receives a parcel of notes to be carried from London to Dover, under a contract to deliver them the next day, fire and robbery excepted; the parcel having been deposited by one of the defendants in a desk at their office in London, is missing after a short absence of that defendant from the office: this is not a loss within the exceptions in the contract. THIS was an action by the plaintiffs, who were bankers at Dover, against the defendants, as carriers, to recover for the loss of a parcel containing notes of the Union Bank at Dover, to the amount of 13407., delivered to the defendants to be carried from London to Dover. On the 17th of May 1820, Gardner, a person then in the Bank of Hoare, Barnett, and Co., bankers, London, but since dead, made up a parcel, to be sent to the plaintiffs at Dover, in the usual course of business. There was no direct evidence to show what the contents of this parcel were, as made up by Gardner; but Cotton, a porter, proved that he brought a candle to Gardner, in order that he might seal the parcel, and that he saw notes lying before him, and that in half an hour afterwards he received the parcel from Gardner, which he afterwards took to the defendants' office. Circumstantial evidence was adduced, in order to show that the notes alleged to have been lost were those which in the usual course ought to have been inclosed in that parcel, and transmitted to the plaintiffs. Nothing was paid with the parcel on delivery to the defendants. The parcel was afterwards missing, and one of the defendants applied to a police officer to assist in recovering the property; and informed him that *144] *the parcel had been deposited in a desk in the office, and that he had left the office for a short time, the key remaining in the door, and that on his return the parcel was gone. The defendants proved that a general notice had been given in the usual form, signifying that they would not be responsible for any parcel, &c., exceeding 5l. in value, unless entered as such, and paid for accordingly. They also produced a number of receipts, given by the defendants from time to time, upon receiving parcels to be carried up from Dover to London, in this form :-" Received of Latham and Co. a paper parcel, directed to Messrs. Hoare, Barnett, and Co., bankers, London, value 250l., which we engage to deliver to-morrow, fire and robbery excepted." ABBOTT, L. C. J., left it to the jury to say, 1st, Whether the parcel delivered to the defendants contained the notes, as was alleged by the plaintiffs; 2dly, Whether the defendants received the parcel upon the usual terms, and without any special contract: or, 3dly, If they found a special contract, whether it was a contract to carry the parcel as if insured, or it was a special contract to be responsible, loss by fire or robbery excepted. He observed that it was probable that the terms on which parcels were sent down were the same with those on which they were sent up, as the parcels were never paid for separately, but a gross sum of 527. 10s. was paid every year; and he advised them, that if they were of opinion that *such was the nature of the contract, that they should find a verdict for the plaintiffs, being clearly of opinion that, considering *145] the way in which the parcel had been dealt with by the defendants, the loss could not be considered as having been occasioned by robbery within the excep tion in the contract. The jury found, that the defendants received the parcel under a special contract to carry the notes, and to be liable, loss by fire and robbery excepted; and that the loss was not by robbery. Copley, Sol. Gen., and Denman, for the plaintiffs. YORK SUMMER ASSIZES, 1822. LANGSTROTH v. TOULMIN. A. becomes the purchaser of an estate sold by the defendant at a public auction, and signs a memorandum of agreement, in which he is described as the agent of M. N. The supposed principal afterwards repudiates the contract; and after notice of the fact to the agent of the vendor, A. pays the deposit money, according to the conditions of sale. Upon its turning out that the title is defective, A. is entitled to recover the deposit in his own name. THIS was an action of assumpsit brought to recover the sum of 2697., which had been paid by the plaintiff as a purchaser of an estate sold by the defendant, and also to recover the expenses to which the plaintiff had been put in investigating the title. *The premises in question had been put up to auction, and the plaintiff being the highest bidder, the following memorandum of agreement was signed upon the conditions of sale: [*146 "Be it remembered, that Stephen Langstroth (the plaintiff), as agent for and on behalf of John Parker, of Hanleth, gentleman, is declared the highest bidder at, and has become the purchaser of, the premises hereby offered for sale, at the price or sum of 26901.; and the said Charles Carr, on behalf of the vendor and the said purchaser, do mutually promise and agree on their respective parts to fulfil and perform the foregoing conditions. (Signed) STEPHEN LANGSTROTH. The plaintiff, when asked at the time of sale whether he was acting on his own account, or was purchasing for John Parker, who was his uncle, and who was not present at the time of the sale, said that his uncle's name was to be inserted as the purchaser. Parker afterwards refused to have anything to do with the contract, but said that he should have no objection to advance part of the purchase-money for his nephew, and he did accordingly advance part of the deposit. Notice had been given to the defendant's agent, before the payment of the deposit, that Parker had repudiated the contract. By the terms of sale, the vendor was bound to make out a good title, and to deliver an abstract on a particular day specified. *On the part of the defendant, it was contended, that the plaintiff being by the terms of the contract the mere agent of Parker, the action ought to have been brought in the name of the latter; but [*147 ABBOTT, L. C. J., was of opinion, that as the supposed principal had repu diated the contract, the agent was bound by it; and that as the defendant's agent had received the deposit after notice that Parker would not acquiesce in the contract, the action was properly brought in the name of the present plaintiff. A special count in the declaration alleged, that the contract was made with the plaintiff in the action; and it was objected, on the part of the defendant, that the plaintiff could not recover damages on the special count, on the ground of variance, the contract not having been made with the plaintiff as the principal, but as the agent only. ABBOTT, L. C. J., said that he would permit the plaintiff to take a verdict for such special damage as the jury should find; and that the defendant might, if he chose, move the court to have the damages reduced to that extent. Verdict for the plaintiff, damages 3077. Scarlett and Starkie, for the plaintiff. *148] *BOTTOMLEY v. WILSON. Action against the defendant as the indorser of a bill of exchange, which he has indorsed to secure a debt due to the plaintiff from A. B. A. B. is not a competent witness for the plaintiff. A guarantee on a bill who is discharged by bankruptcy from his liability on the bill, is discharged also from the costs of an action against the principal. ASSUMPSIT by an indorsee against an indorser of a bill of exchange. The bill in question had been given as a security for a debt from A. B. to the plaintiff. A. B. was called as a witness for the defendant; but it was objected, that he was incompetent, on the ground that he would be liable to the defendant, if the plaintiff succeeded, not only to the amount of the debt, but also for the costs of the present action. On the other side, the case of Brind v. Bacon, 5 Taunt. 183, was cited.† ABBOTT, L. C. J., was of opinion that the witness was incompetent; and intimated, that in the case of Brind v. Bacon the court must have proceeded on the ground that the costs were discharged as well as the debt.‡ + See the next note. The marginal note of that case was cited in court, which states that "the guarantee of a bill discharged by bankruptcy of his liability on the bill, is not an incompetent witness in an action on the bill, by reason of his liability to costs in an action on the bill." But on reference to the case itself, it appears to have been decided, as suggested by his lordship in the above case, on the ground that the witness being discharged by the st. 49 G. 3, c. 121, s. 8, as to the bill, was discharged as to the costs also, which followed the debt. See Jones v. Brook, 4 Taunt. 464. Maundrell v. Kennett, 1 Campb. 408. Hardwicke v. Blanchard, 1 Gow. 113. From the language of the judges in the case of Birt y. Kershaw, 2 East, 458, it seems that the *149] court, in that case, were of opinion that as the witness was responsible either to the plaintiff or the defendant for the sum in dispute, it made no difference that the witness (who was called by the defendant) would, in case the defendant failed, be liable to him, not only for the debt, but also the costs of the action. But that case, as well as that of Ilderton v. Atkinson, 7 T. R. 480, are supported by the general principle as to the competency of an agent, GUILDHALL. SCHOOLING et al., Assignees of GREEN, v. LEE. A trader being arrested on the 23d of August, obtains his liberty upon undertaking to attend to execute a bail-bond, but breaks his word; and on the 8th of September admits to the bailiff that he was at home when the bailiff had called, and the trader had been denied to him. The omission to attend to execute the bail-bond does not amount to an act of bankruptcy, and the declaration of the trader on the 8th is not admissible. TROVER by the plaintiffs, as the assignees of Green, a bankrupt, to recover the value of a large quantity of iron, alleged to have been sold by the bankrupt to the defendant after having committed an act of bankruptcy. No notice having been given that the bankruptcy would be disputed, the proceedings under the commission were read in evidence. The deposition as to the petitioning creditor's debt, stated a debt for goods sold and delivered between the 16th and 26th of August. The deposition to prove the act of bankruptcy was made by a sheriff's officer, who stated that he arrested Green, the bankrupt, on a warrant upon a writ, on or about the 23d of August, but that on a promise by Green that he would execute a bail-bond, he released him; that Green did not attend to [*150 execute the bail-bond according to his promise; but that the deponent called frequently at his house, but was denied by Green's servants, although the deponent believed that the bankrupt was at home; that on the 8th of September he met the bankrupt, and reproached him with his breach of promise in not having attended to execute the bail-bond; and that upon that occasion the bankrupt admitted that he was at home when he was so denied. For the defendant, it was objected, that, in the first place, the deposition did not show that any act of bankruptcy had been committed; for the declaration of the bankrupt, after the supposed act relied upon as an act of bankruptcy had been committed, was not admissible evidence to prove the bankruptcy. But that if the circumstances amounted to an act of bankruptcy, it did not appear that at the time when it was committed a sufficient petitioning creditor's debt to support the commissions had accrued; for the arrest was alleged to have been on or about the 23d, but according to the deposition, a sufficient petitioning creditor's debt might not have accrued until the 26th. On the part of the plaintiffs, it was urged, that the declaration made by the bankrupt to the bailiff who had arrested him fell within the principle of that class of cases where the declarations of the bankrupt, cotemporary, or nearly so, with the act of absenting himself, have been received in evidence. And a case was cited, as ruled by *Gibbs, C. J., where the declaration made by a bankrupt who had absented himself two days after his return, was received in evidence. But, [*151 ABBOTT, L. C. J., held that the deposition did not afford primâ facie evi dence of an act of bankruptcy to go to a jury. The party absented himself not in order to avoid a creditor with whom he had made an appointment, but merely to avoid the execution of a bail-bond. There was no proof of absence, except from what the bankrupt himself had said; and his declaration being subsequent to the act of bankruptcy, was inadmissible. Puller and Wilde, for the plaintiff. Gurney, for the defendant. Plaintiff nonsuited. GUTHRIE et al. v. FISKE et al. A B., being secretary to the Norwich Life Insurance Company, and also to the Norwich Fire Insurance Company, offers a petition to the great seal for a commission of bankruptcy in respect of a debt due to himself, the debt being in fact due to the Norwich Fire Insurance Company. The affidavit and petition are not evidence in an action by the assignees under the commission against the Norwich Life Insurance Company. An act of parliament authorizing the Norwich Fire Insurance Company to sue in the name of their secretary does not warrant the suing out a commission of bankruptcy upon the petition of the secretary as on a debt due to himself. THIS was an action brought by the plaintiffs as the assignees of Savoy, a bankrupt, against the defendants, being two of the directors of the Nor*152] wich Life Insurance Company, to recover the sum of 34487., as money had and received by them to the use of the plaintiffs, as such assignees. The commission had issued on the petition of Samuel Bignold, and it was proved that Samuel Bignold was the secretary of the Norwich Life Insurance Company, and also of the Norwich Fire Insurance Company. The petition to the lord chancellor, annexed to the commission, stated that the bankrupt was indebted to Samuel Bignold in the sum of 13217. for goods sold and delivered, and money lent. It was also proved, that Savoy was indebted to the Norwich Fire Insurance Company in that sum. It appeared that by an act of parliament the Norwich Fire Insurance Company were authorized to sue in the name of their secretary. The plaintiffs, in order to show that Samuel Bignold was properly the petitioning creditor, in respect of the debt due to the Norwich Fire Insurance Company, tendered in evidence the affidavit of Samuel Bignold, on which the petition was founded, and in which he stated that the debt was due to the Fire Insurance Company, insisting that this was evidence against the present defendants, inasmuch as Samuel Bignold, who made that affidavit, was secretary to the Life Insurance Company as well as to the Fire Insurance Company, and therefore that the former company were bound by his acts; but ABBOTT, L. C. J., was of opinion that the *evidence was inadmissible. *153] The Life Insurance Company were not liable in respect of any acts done by Bignold, except such as were done by him in the character of secretary. It was then objected on the part of the defendants, that there was no proof. of any debt due to the petitioning creditor; the debt proved was due not to him, but to the Fire Insurance Company; and although their act of parliament authorized him to sue for debts due to the Company, it did not authorize him to sue out a commission, as on a debt due to himself. For the plaintiffs, it was contended, that as the secretary to the Fire Insurance Company might bring actions, he might also petition. ABBOTT, L. C. J. But if he bring an action, he must allege that he brings the action as secretary; it would not be sufficient for him to declare in his own individual capacity. The affidavit of debt is right, but the petition is incorrect. Denman and Tindal, for the plaintiffs. VOL. III.-80 Plaintiff nonsuited. |