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1797.

FOWLER

Down.

unless the crown interpose. The aflignees may allow the bankrupt to trade, and will have a right to recover the fruit of his contracts.

ROOKE J. I am of the same opinion. If a stranger is under any difficulty about defending himself against the aslignees in a fubsequent action, he has only to give them notice of the first, and inquire whether they choose to defend it, and thereby he Tould be secured.

Rule discharged. (a) 6) This case was afterwards confirmed by a similar decision in the K, B. See

Webb v. Fox and Another, 7 T. R. 391.

237.

conclufive evi

LOVERIDGE v. BOTHAM,

May 27th. .

2 Bef. & Pull. LE

E BLANC Serjt. having moved for the prothonotary's report Delivery of an

in this case, it appeared that the Plaintiff had delivered a bill attorney's bill is to the Defendant in 1793, for attorney's business done, previous to dence against that time; in 1795 another bill was delivered for business done an increase of during the same period, into which many new items were intro- fequent bill on duced, and some of the former charges raised in amount. The any of the items prothonotary wished to be informed how far he was to consider and strong prethe Plaintiff as concluded by the delivery of his first bill.

sumptive evi. The Court said that the delivery of the former bill was conclu- any additional

dence against five evidence againft an increase of charge on any of the items items. contained in it, and strong presumptive evidence against any additional items; but that if errors or real omissions in the former hill could be proved, they ought to be allowed for: and directed the prothonotary to review on this line of distinction. (a)

(2) Knox v, Whalley, Epp. Cas. N.P, 159,

May 29th.
Stables and Another v, ASHLEY and Others.

4. Eaf, 590
Ante, 19.

2 New Rep. 83. A

RULE was obtained by Shepherd Serjt. on a former day, to In process not shew cause why the proceedings in this action should not be bailable, if the

writ be joint and set afide for irregularity. A quare claufum fregit having been sued the declaration out by the Plaintiffs againft Ashley, Frost, and Grignon, and Ashley's feveral

, it is reattorney served with a copy of the process, he searched the Fila- Secus in bailabiq zer's Book, and found a memorandum (a) of a warrant of attorney

process. in the action againft all three, and accordingly on the 3d of May entered one joint appearance for them, though he had authority from Ashley only; on the 4th of May he was ferved with a notice

(-) 25 G.o. z. c. 80. TOL I.

1797.

STABLES and

Another

ASHLEY and

Others.

of declaration; on the 5th he took it out of the office, and found that Ashley was the only one of the three declared against.

Le Blanc Serjt. for the Plaintiffs contended, it, That as it was not a bailable process, the proceedings were regular, and cited Yardley v. Burgess, 4 T. R. 697. in the note, and Spencer v. Scott decided in this term (6); 2dly, That if there were any irregularity, it had been waived by the Defendants' taking the declaration out of the office; and 3dly, That the Defendants' attorney was equally irregular with the Plaintiffs, having entered a joint appearance for all three, when authorised by one only.

Shepherd contrà infifted that the writ and appearance being joint, and the declaration several, there was no process to warrant it; that the case of Spencer v. Scott went upon the possibility of the additional Defendant's being a fi&itious person like John Doe, but here the service included all three; that taking a declaration out of the office is a waiver of irregularity in the procefs, because the Defendant is acquainted with that before he goes to the office, but not of irregularity in the declaration, for he must take out that before he can ascertain whether it be irregular or not: he added, that by the present mode of proceeding the revenue would be defrauded.

Per Curiam. The attorney has taken upon himself to enter an appearance for three, having an authority from one only; the Court therefore, if necessary, might cure the whole irregularity by setting aside the appearance as to two of the Defendants, and letting it stand for Ashley only. Unless we found ourselves bound by the stricteft authorities, we would not countenance such an objection as this; but the practice seems against this objection; the distinction (c) is between process bailable and not bailable; in the latter a declaration may be delivered against one, though any number be mentioned in the writ, and no inconvenience can result from it; we will not diftinguith between John Doe and a real Defendant, in order to raise an objection.

Rule discharged without cofts.

(6) Suprà, page 19

Holland v. Riebards and Gardley V. Bur. Holland v. Fobnfun, 4 T.R. 695. gess, T. 32 G. 3. ibid. in Notes.

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In the Thirty-seventh Year of the Reign of George III.

allowed to re

North qui tam v. SMART.

June 19th. A QUI TAM action having been brought on the 20 Geo. 3. In compounding C. 51. for sending in false accounts to the farmers of the a penal action on

the post-horseduties on post-horses ;

act, (which gives Le Blanc Serjt. on a former day moved for leave to compound costs to the proon payment of 4os. to the Crown, and such duties as were defi- prosecutor was cient in consequence of the fraud (which did not amount to 4os.) ceive the detogether with the costs of the action to the prosecutor.

ficient duties Shepherd Serjt. said he was instructed to consent.

(not amounting

to 40s.) and full But the Court seemed to doubt whether, as the deficient duties, costs of fuit, together with the costs of the action, would amount to more than

though together

exceeding the the 40s. paid to the Crown, the composition could be allowed, 40s. paid to the

Crown and it ftood over.

On this day Le Blanc mentioned it again, and said that he had looked into the act, and found that the prosecutor was allowed the full cofts of fuit; and therefore that the value of the cofts could not be confidered as a part of the composition.

E 2

Accord

1797.

NORTH

Accordingly, the Court gave leave to compound, and said that as the act was made for the benefit of the farmers of the post-horse duties, it was not unreasonable that they should make the composition on their own terms. Besides with respect to cofts, this was not like other popular actions.

SMART.

June 2cth.

EVANS v. GILL.

The Court

MARSHALL Serjt. Thewed cause against a rule for setting aside will fet alide a

a regular judgment on an affidavit of merits, upon the regular judgment, on an ground that the Defendant meant to plead his bankruptcy. affidavit of

This is ndt more a plea of merits than infancy, coverture, ufury, merits, though bankruptcy is in- or the Statute of Limitations: and in those cases the Court has tended to be

refused similar applications (a). Bankruptcy is not a meritorious, pleaded.

but a mere legal defence, against a conscientious claim; it is not such a discharge but that a previous debt may be a confideration for a new promise, as in cases of infancy, and the Statute of Limitations.

Sed per Curiam. Supposing this to be a fair bankruptcy, we Thould permit the party to make use of it as a defence; when he has given up all his effects, it would be cruel to charge him from a neglect in the attorney; the necessary consequence of which would be, that he must go to gaol. In all cases of fair bankruptcy, we think the party should have an opportunity of taking advantage of it.

Rule absolute on payment of costs.

(c) Vid. Forbes v. Lord Middleton, Str. 1242. and Willett v. Atterton, Bl.35.

1797.

Buck, on the joint and several Demises of WHALLEY June 22d.

Clerk and Wife, v. Nurton.

vite of “a

ninces,

TA *His was an ejectment to recover fixty-four acres and a half Lands usually

of land, consisting of a park, meadow land, pasture land, occupied with a and orchards, tried before Buller J. at the last Lent aflizes for pass under a dethe county of Somerset, when the Jury found a verdiet for the . melluage, with Plaintiff, subject to the opinion of this Court upon the following the appurtecale:

let's it clearly apo Edward Clarke, deceased, being feised (among other things) pears that the of the premises in queftion, did, by his lait will duly executed, to extend the and bearing date the first day of November in the year

word “ appurof our

tenances" be. Lord 1794, devise (amongst other things) as follows:

yond iis technis "I give and devife unto my trufty and well-beloved friend cal feute. John Nurton, of Milverton in the county of Somerset aforelaid, *** Gentleman, (and who was acting for the tesator, at his death, as

his fteward,) his heirs and assigns, all that messuage and farm “ called Blagroves, and the several pieces and parcels of land " therewith held and enjoyed, fituate, lying, and being in the " parith of Milverton aforesaid, and now in the occupation of Jonas Chorley; also all that close, piece or parcel of meadow " or marsh ground, called Great Crook, situate, lying, and being “ in the parish of Bawdripp in the faid county of Somerset, and “ now in the occupation of John and Richard Langdon; to hold is the said messuage or tenement and farm, lands, hereditaments, * and premises, with their respective appurtenances, unto the " said John Nurton, his heirs and afligns for ever."

Having then given certain legacies and annuities, he further gives and devises as follows;

“ I give and devise unto my good friend and relation Eliza* beth Whalley, wife to the faid Thomas Sedgwick Whalley, (the * said Elizabeth Whalley being one of the coheirs of the teftator,) * all that my capital manfion-house wherein I now live, and the * lands and grounds thereto belonging, and therewith held and en* joyed, with the appurtenances: and also all that my manor or ** lordship of Chipley, and all other my manors or lordihips, * meffuages, farms, lands, tenements, hereditaments, and premises, * as well freehold or fee-simple, as copyhold and cuttomary, “whereof I have a disposing power; except the messuage, or “ tenement, and farm, lands, hereditaments, and premises herein- [54] * before devised to the faid John Nurton, fituate, lying, and

E 3

being

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