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1799. PELL V. BROWN.
Feb. 8th.. A
RULE niñ having been obtained by Sellon Serjt. for referring Where judgment
a promissory note, on which judgment had gone by default, has gone by deto the prothonotary to compute principal, interest and costs, millory note, no Heywood Serjt. Dhewed for cause against it that the process was vides to the judge not served till two days after it was returnable. But the Court were of opinion that while the judgment re- again't referring
Thewn as cause mained in force no caufe could be thewn against this rule the note to the founded on any irregularity previous to the judgment; and that prothonutary. if the judgment had been irregularly obtained the Defendant might move to set it aside.
ment can be
ment on one of
Doe ex dim. John BAILEY V. Roe.
Feb.gth. KERBY ERBr Serjt. moved for judgment against the casual ejector, Service of a de
claration in eject. saying that as the affidavit of service of declaration was not in the ufual form he would state the substance of it. The de- two renants in
polleflion, is ponent went to the house of Thomas Bailey and Im. Kirk the good fervice on tenants in possession, and -feeing two women in the house ten- both. dered and explained to them a declaration which they refused to accept and which he fastened on the premises; in returning he met Wm. Kirk, to whom he tendered and explained another copy which he likewise refused to accept, and which the deponent fastened on another part of the premises.
EYRE Ch. J. I do not know that we have ever construed the rule of Court so strictly as to hold that service on one of two tenants in possession may not be considered as a good service. In this case it is expressly sworn that a declaration was tendered to Kirk who refused to receive it.
Menham, Aflignee &c. of a BANKRUPT, v. EDMONSON. Feb. 9:h.
dant. The cause was tried before Rooke J. at the Guildhall to a commission fittings in this term, when it appeared that the act of bankruptcy that it was sued
out with intent to defeat a previous execution, if no collusion appear on the part of the bankrupt. If a creditor accompany the sheriff's officer in levying an execution which is afterwards avoided by a commission of bank: ruptcy, trover may be maintained against him by the allignees though he has never received either the goods or their value from the sheriff. VOL. I.
was committed in December 1796; that in June following a com-
At the trial it was objected by the counsel for the Defendant,
Clayton Serjt. having on a former day obtained a rule to fhew cause why this verdict should not be set aside and å new trial be had, on the ground of its being contrary to evidence, and in a great measure to the direction of the Judge,
Cockell Serjt. was now to have shewn cause.
Sed per Eyne C. J. I do not fee fufficient ground for saying that the bankruptcy was fraudulent. There appears to be nothing beyond mere suspicion. It is indeed highly probable that the commission of bankruptcy was sued out in order to defeat the bill of fale made under the execution. This has I doubt not been frequently done, nor is there any injustice in it; one creditor endeavours to gain an advantage over the other creditors by taking his whole debt in execution; they on the other hand when they see all the effects likely to be swept away endeavour to set aside that execution by a commiffion, in order to obtain an equal distribution (a). It is also true that this may be done by the contrivance of the bankrupt, and the whole may be a collufion, in which case the Court will interfere. But where the parties before the Court are both creditors standing in an equal degree of right and equally entitled to favour, unless there be
(a) See the opinion of Ld. Eldon C. de- be done with the privity of the bankrupt. creeing differently, observing that it may 7 Ves. Jun. 303.
some circumftance of collufion on which we can place our finger, the bankruptcy must take effect. The question is not whether this commiffion has been taken out to avoid the execution, but whether it has been fo taken out with the collusion of the bank
Cockell then desired to take the opinion of the Court on the point which had been mooted at the trial, viz. Whether trover could be maintained against the Defendant, or whether it should not have been brought against the sheriff, in the hands of whose broker the money remained? Ile cited Rush v. Baker, Bull.
N. P. 41.
Eyre Ch.J. I had fome doubts at first as to this point, and whether the execution having been regularly made under the authority of the law, and the goods regularly fold, the action should not have been brought for the money. There is a fact however in the case which decides the point, namely, that the Defendant was in company with the sheriff's officer at the time of the execution. By the case cited it appears, that trover may be maintained against the party himself if he give a bond to the sheriff, because giving a bond is equal to intermeddling; actual intermeddling therefore must be equal to giving a
(a) In the report of Rufo v. Baker, in officer" though no mention is there made of 2 Sira. 996., it is said " that the action was any bond being given to indemnify the well brought against the Defendant, who sheriff. received the money without joining the
WHALLEY V. TOMPSON and Another,
in fee of the ad.
Pleas ift, Not guilty. 2d, That long before the said times joining closes A. when &c. and long before the said Plaintiff had any thing in the and B. over the
former of which said close in which &c. (to wit) on the 20th day of March in the a
a ivay had immeyear of our Lord 1753 one Thomas Adderley Efq. was at one and moriatly been
ulei rothe latter; the same time seised as well of two closes situated in the parisii of devises to B.with
the“ appurteWeddington aforesaid formerly called the Wood Close and Ox Close
nances”; held and lately divided into four pieces and now known by the name that the devilee of Little Leyfield and Ox Meadow as of and in the said close in cannot under the
word “ apportewhich &c. in his demesne as of fee and that the said Thomas nances” cisim a Adderley and all those whose estate he then had in the faid clofe right of way over
A co B., as no
new right of way is thereby created, and the old one was extinguihed by the unity of seifin in the devilor. BB 2
formerly called the Wood Close and Ox Close and now called Little Leyfield and Ox Meadow from time whereof the memory of man is not to the contrary had used and enjoyed and was used and accustomed to have use and enjoy and the said Thomas Adderley had used and enjoyed by his farmers and tenants a certain way from the King's highway in the parish of Weddington aforesaid leading from Nuneaton in the county aforesaid to Athersion in the said county unto into through over and along the said close in which &c. to the said closes formerly called the IVood Close and Ox Clofe and now called Little Leyfield and Ox Meadow and from thence back again by the same way to the said common highway for himself and themselves and his and their tenants and his and their servants to pass and repafs on foot and with their cattle carts and other carriages at all times as occafion required as an eafement and appurtenance belonging to the faid closes formerly called the Wood Clofe and Ox Clofe and now called Little Ley field and Ox Meadow And the said Thomas Adderley being fo feised as well of the said clofe in which &c. as of the said closes formerly called the Wood Close and Ox Close and now called Little Leyfield and Ox Meadow and so having using and enjoying the said way as an easement and appurtenance belonging to the faid closes formerly called the Wood Close and Ox Close and now called Little Ley field and Ox Meador afterwards (to wit) on the same day and year last aforesaid at Weddington aforesaid in the county aforesaid did duly make and publish a certain codicil to his last will and testament the said codicil being in writing and duly executed to pass real estates and did thereby (amongst other things) give and devise the faid closes formerly called the Wood Close and O.x Clofe and now called Little Leyfield and Ox Meadow with their and every of their appurtenances to the use of his fister Elizabeth Liptrott for and during the term of her natural life remainder to Amicia Bracebridge the then second and youngest daughter of Philip Bracebridge Clerk and the heirs of her body, remainder to the right heirs of the said Philip And the said Thomas Adderley afterwards and before the faid times when &c. (to wit) on the 15th day of February in the year of our Lord 1757 at Weddington aforesaid died, not having revoked or altered his faid codicil and fo feised as aforesaid as well of and in thefaid closes formerly called the Wood Close and Ox Close and now called Little Leyfield and Ox Meadow with the rights members and appurtenances thereunto belonging as of and in the said clofe in
which &c. upon whose death the said Elizabeth Liptrott by virtue of the said devise afterwards and before the same times when &c. (to wit) on the same day and year last aforesaid entered into the said closes formerly called the Wood Close and Ox Close and now called Little Ley field and O.x Meadow together with all the rights members and appurtenances thereunto belonging fo devised to her as aforesaid and was thereof seized for and during the term of her natural life and had used and enjoyed by her farmers and tenants the faid way as an easement and appurtenance belonging to the faid closes formerly called the Wood Close and Ox Close and now called Little Ley field and Ox Meadow (to wit) at Weddington aforesaid in the county aforesaid and the said Elizabeth Liptrott being so thereof possessed and fo using and enjoying the said way afterwards (to wit) on the second day of March in the year of our Lord 1765 at Weddington aforesaid died, whereupon the faid Amicia Bracebridge afterwards and before the said times when &c. (to wit) on the same day and year last aforesaid entered into the faid closes formerly called the Wood Clofe and Ox Close and now called Little Ley field and Or Meadow together with all the rights members and appurtenances thereụnto belonging fo devised to her as aforesaid and became feised thereof to her and the heirs of her body and had used and enjoyed by her farmers and tenants the faid way as an easement and appurtenance belonging to the faid closes formerly called the Wood Close and Ox Close and now called Little Leyfield and Ox Meadow (to wit) at Weddington aforesaid in the county aforesaid. And the said Amicia being so feised as aforesaid and so using and enjoying the said way afterwards (to wit) on the 19th day of September in the year of our Lord 1769 at Weddington aforesaid in the county aforesaid intermarried with one George Hemming Esquire whereby the said George and Amicia in right of the faid Amicia became and were and still are feised of and in the said closes formerly called the Wood Close and O.x Close and now called Little Ley field and Ox Meadow with all the rights members and appurtenances thereunto belonging tothe said George and Amicia and the heirs of the body of the said Amieia, and had used and enjoyed by their farmers and tenants the faid way as an easement and appurtenance belonging to the fame And being fo thereof feised and fo using and enjoying the said way as last aforesaid the said George afterwards and before the faid times when &c. (to wit) on the first day of January in the year of our Lord B B 3