« 이전계속 »
1797. the Defendant by withholding the award, who may redress hin
self by one attachment, than for the Defendant to have an at
tachment against the Plaintiff for not obeying the award as far RICHARDSON.' as concerned him, and then for the arbitrator to have an at
tachment againtt him, for the moiety of the cofts of the arbitration. What a fcene of litigation, expence and vexation might this strictness produce? Suppofing no objections to the expences themselves, I think the attachment should issue.
BULLER J. My doubt is this. The money has been advanced voluntarily, and without application from the Plaintiff, and the Defendant comes for an attachment as grounded on the award. Being a mere voluntary payment on the part of the Defendant, I doubt whether the Plaintiff is strictly liable to an attachment. Suppose the arbitrator had awarded the expences of the arbitration to be paid by the parties jointly and not severally. — However, I am perfectly satisfied that no injustice will be done; the Plaintiff is certainly bound to pay tome way or other: if therefore the Court are inclined to grant the attachment, I shall not oppofcit.
HEATH J. I cannot consider this as a more voluntary payment of money, since the Defendant could not have got the award out of the hands of the arbitrator till all the expences were paid.
RooKE J. It is clear that one man cannot pay the debt of another officiously. But in this case there is one circumstance on which I lay great stress. It was necessary to make the submillion a rule of Court; at least the attachment is right to enforce the payment of half the expences of that proceeding. I do not like attachments on equitable grounds, and I think that the Court should be very strict in granting them. But since there is a legal ground as to part, and as it is the opinion of the Court that no injustice will be done, I shall not oppose the attachment.
EYRE Ch. J. added, that perhaps on ftri& legal grounds the arbitrator ought to have applied for the attachment to enforce payment of the costs of the arbitration, but that he was unwilling to force arbitrators to come into Court
HOLLAND U. PALMER.
15 Eaf, 251. DF ECLARATION forgoods sold and delivered, and common money If any one of
counts. Plea, That after the cause of action accrued, and ditors, though before the commencement of the fuit, the Defendant became a without the pri
vity of the banks bankrupt and obtained his certificate.
rupt, be induced At the trial of this cause before Lord Kenyon at the summer by money to afizes for Stafford, it was proved that Richard Pope, one of the cate, it is void, creditors who had signed the certificate, had received ten guineas for so doing from one Griffiths the Defendant's brotherin-law, but without the privity of the Defendant. It was contended on the part of the Plaintiff that the certificate was avoided by this circumftance under 5 Geo. 2. c. 30. Lord Kenyon hefitated, but the inclination of his mind was that the certificate was void: ard a verdiêt was accordingly found for the Plaintiff, fubject to the opinion of this Court
Adair Serjt. now moved for a rule to shew cause why theverdiet for the Plaintiff should not be set aside, and a verdict be entered for the Defendant. Ile contended that the acceptance of a sum of money by a creditor as an inducement to sign the certificate, if without the privity of the bankrupt, did not vitiate the certificate to figned. He faid the case of Rolfon v. Calze, Doug. 229. cited Cooke's B.L. 351. contained an implication in his favour; for as the argument there turned on the knowledge of the bankrupt at a particular time, viz. the time of the allowance of the certificate by the Chancellor, it seemed to admit that if the bankrupt had not known it at all, the certificate would not have been void. He added, that if it were otherwise it would be in the power of an enemy to deprive the bankrupt of the benefit of his certificate by maliciously advancing money to a creditor.
BULLER J. It is no matter whether the bankrupt knew of the money being paid or not; it was a fraud on the rest of the creditors. One of the creditors has obtained money which ought to have been divided among all of them. By fo doing he has obtained an advantage. Besides, the others may have been induced to sign by his example.
Eyre Ch. J. This has always been the impression on my mind, and I should have had no difficulty upon it at Nifi Prius. do not feel the weight of the distinction between the party
coming to the knowledge of the money paid just before the
Heath and RookE, J:. being of the same opinion,
Jacobs v. STEVENSON. 1 BOS. 6 Pull. 236. The Court will The Plaintiff in this action was a foreign failor, serving on not stay proceed- board an English Thip, and declared in trover for a cheft. ings till security is given for the
Le Blanc, Serjt. now moved for a rule to fhew cause, why the cofts, in an ac- proceedings should not be stayed till the Plaintiff should give rion by a foreign seaman serving security for the costs of the action. He admitted, that the on board an Eng, inclination (a) of the Court had been not to adhere to the genetija Irip.
ral rule with respect to foreigners, in the case of feamen serving on board English ships, left they might be discouraged from entering into our service: but contended, that the exception was confined to cases where they sued for their wages.
Eyre Ch. J. This motion cannot be supported in the case of any foreigner if he bc refident in this country. Now the Court may assimilate the case of foreigners serving on board English thips, to that of foreigners resident in this country. Perhaps the present Plaintiff is serving on board an English thip bound to the port of London. He may, indeed, be a foreigner, but he is just as amenable to the jurifdiction of the Court as any English sailor in () Henfeben v. Garvis, 9 H. BI. 383. and 384. a. b.
the fame situation. The same reafons which influenced the Court in their former decisions on this subject, will influence them in the present case.
Le Blanc took nothing by his motion.
ment on a ver.
HIGGINSON v. Nesbitt. ADAIR, Serjt. on a former day having moved for leave to The Court will
enter up judgment in the first instance, on a verdict re- Site intance to duced by an award; the Court then thought that he could only enter up ju'sapply for a rule to shew cause.
diet reduced by He now mentioned it again, and stated that it was the practice of the King's Bench to make the rule absolute in the first instance, and added, that the practice of this Court seemed to have been so considered in a case of Higginson v. Bell, in last Trinity term, where a like motion with the present was granted. The Court upon this made the
Rule absolute. (a)
(a) Vid. etiam Grimes v. Noise, Pof 480. a case entitled to the poflea without any There it was held that the party was in such application to the Court.
about to execute a warrant of
muf be done in
JEYES One, &c. v. Booth.
Nov, rith, ADAIR, Serjt. obtained a rule calling on the Plaintiff to fhew Is a Defendant cause why the judgment entered up, and the ca.
fa, issued in in cuftody being this case, should not be set aside with costs, on an affidavit ftating, that the judgment was entered up on a warrant of attorney attorney to CORE executed by the Defendant, when in custody in the Fleet prison, informed that it he having no attorney present on his behalf.
the presence of The facts were these: The Defendant being in custody for the
an attorney on debt of a third person, but being supersedable, was informed, that his part, and
theretipon proif he was fuperfeded, he would be detained at the suit of the duces a Plaintiff, who was an attorney: upon this he fent for the Plaintiff, as
as such, in whore
pretence he exe. who by his direction prepared the warrant of attorney in question; cutes the warthe Defendant took it into his hand, read it, and was proceeding rant of attorney's to execute it, when the Plaintiff informed him that he must have not set aside the an attorney on his part present at the execution; accordingly the proceedings Defendant went into another part of the prison and brought with the person fo him a person, who being afked by the Plaintiff whether he was an
produced by the
Defendant was attorney, answered in the affirmative; he was then desired to ex- not an attorney. plain the nature of the instrument to the Defendant; and the VOL. I. H
warrant was executed in his presence. It turned out afterwards that this person was not an attorney, but only a clerk to an attorney.
Le Blanc shewed cause and contended, that where a party produces a person as an attorney who in fact is not one, that party shall not be allowed to turn a Plaintiff round by saying that the warrant of attorney is not, on that account, properly executed.
EYRE, Ch. J. If on the plaintiff objecting, that the warrant must be executed in the presence of an attorney on the part of the Defendant, the Defendant accepts the instrument, and takes upon himfelf to find out the person in whose presence he ought to execute it, the Court will not, for the purpose of such a motion as this, doubt that such person was an attorney. The present application is founded on an attempt to cheat the Plaintiff. Per Curiam,
Rule discharged with costs• (a)
(a) Vid. Bireb v. Sberland, 1 T.R.915. „T.R.7. Fell v. Riley, Cowp. 281. Wat. Crimpton v. Steward, 7 T. R.19. Gillman kins v. Hanbury, 2 Str. 1245. Burnes v. v. Hill, Cowp. 141. Hutson v. Hutson, Ward, Co. Ca. Prac. C. B. 158.
The Master, Wardens, and Commonalty of Felt
MAKERS v. Davis.
not fue for a
EBT on a by-law for 20l.
DEB Wardens anit
The ist count in the declaration Communalty of
set out a charter of 19 Car. 2. incorporating the Feltmakers' a company, can. Company, giving a power to the Master, Wardens, and penalty forfeited
Afliftants to make by-laws, and directing that the Wardens should to rhe Master be chosen out of the Ashstants. It then stated that a by-law was and Wardens, to the use of the
made imposing a fine of rol. on every member of the company, Master, War- who being chosen Renter Warden should refuse to take upon dens, and company.
himself that office, to be paid to the Master and Wardens for the The ist count time being, for the use of the Master, Wardens, and Company; in a declaration in debt for a
that the Defendant became a member of the company, was elected under a Afliftant, and took upon himself that office, and was afterwards the charter im-" elected Renter Warden, which office he refused to serve, &c. powerirg the
whereby, &c. The ad count and the breach were as follows: company to make by-laws,
“ And whereas also the said William Davis, so being a member of the by-law made the said company heretofore, to wit, on, fc. at, &c. was indebted of it; The 2d to the faid Master, Wardens, and Commonalty of the art or count, omitting the above parriculars, itated the penalty as heiug forfeited " under acid hy virtue of a certain by-law of the company before that time duly made,” & c. and this count was on special de murrer heid bad.