1797.

HICKS

V.

the Defendant by withholding the award, who may redrefs him-. felf by one attachment, than for the Defendant to have an attachment against the Plaintiff for not obeying the award as far RICHARDSON. as concerned him, and then for the arbitrator to have an attachment against him, for the moiety of the cofts of the arbitration. What a fcene of litigation, expence and vexation might this ftrictness produce? Suppofing no objections to the expences themselves, I think the attachment fhould iffue.

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 ftrictly liable to an attachment. Suppofe the arbitrator had awarded the expences of the arbitration to be paid by the parties jointly and not feverally. - However, I am perfectly fatisfied that no injuftice will be done; the Plaintiff is certainly bound to pay fome way or other if therefore the Court are inclined to grant the attachment, I fhall not oppofe it.

HEATH J. I cannot confider this as a mere voluntary payment of money, fince 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 officioufly. But in this cafe there is one circumftance on which I lay great ftrefs. It was neceffary to make the fubmiffion a rule of Court; at leaft 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 fhould be very ftrict in granting them. But fince there is a legal ground as to part, and as it is the opinion of the Court that no injustice will be done, I fhall not oppose the

attachment.

EYRE Ch. J. added, that perhaps on ftrict legal grounds the arbitrator ought to have applied for the attachment to enforce payment of the cofts of the arbitration, but that he was unwilling to force arbitrators to come into Court.

Rule abfolute.

HOLLAND V. PALMER.

DECLARATION forgoods fold and delivered, and common money

counts. Plea, That after the caufe of action accrued, and before the commencement of the fuit, the Defendant became a bankrupt and obtained his certificate.

At the trial of this caufe before Lord Kenyon at the fummer affizes for Stafford, it was proved that Richard Pope, one of the creditors who had figned the certificate, had received ten guineas for fo 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: and a verdict was accordingly found for the Plaintiff, fubject to the opinion of this Court.

Adair Serjt. now moved for a rule to fhew caufe why the verdict for the Plaintiff fhould not be fet afide, and a verdict be entered for the Defendant. He contended that the acceptance of a fum of money by a creditor as an inducement to fign the certificate, if without the privity of the bankrupt, did not vitiate the certificate fo figned. He faid the cafe of Robfon v. Calze, Doug. 228. 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 otherwife it would be in the power of an enemy to deprive the bankrupt of the benefit of his certificate by malicioufly 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 reft 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. Befides, the others may have been induced to fign by his example.

EYRE Ch. J. This has always been the impreffion on my mind, and I fhould have had no difficulty upon it at Nifi Prius. do not feel the weight of the diftinction between the party

coming

1797

HOLLAND

V.

PALMER.

coming to the knowledge of the money paid juft before the
allowance of his certificate, and at any time before. The cer-
tificate is as improperly obtained, whether the bankrupt knows
of the circumftance or not. My Brother Buller's obfervation
is extremely ftriking. If a confiderable creditor be induced by
money to put himself at the head of the lift, the majority in num-
ber and value may be obtained by that means; fince others may
be unwilling to refufe figning, when one of the moft confider-
able has confented. The bankrupt is to have the benefit of the
certificate, provided the genuine fenfe of the body of creditors
appears in his favour; but if it is not the genuine fenfe that
appears, the certificate is no longer that fair act which ought
to have any effect. I fhould not, therefore, agree to the cafe
which has been put, of money paid maliciously. I should think
that a certificate fo obtained would be bad; but the bankrupt
would be at liberty to procure another. On this cafe I have
no difficulty whatever.

HEATH and ROOKE, J. being of the fame opinion,
Adair took nothing by his motion.

Nov. 10th.

Bof. & Pull.

236.

JACOBS v. STEVENSON.

The Court will THE Plaintiff in this action was a foreign failor, ferving on board an English fhip, and declared in trover for a cheft.

not stay proceedings till fecurity is given for the

cofts, in an action by a foreign feaman ferving on board an EngLife hip.

Le Blanc, Serjt. now moved for a rule to fhew caufe, why the proceedings fhould not be stayed till the Plaintiff should give fecurity for the cofts of the action. He admitted, that the inclination (a) of the Court had been not to adhere to the general rule with respect to foreigners, in the case of seamen ferving on board English fhips, left they might be difcouraged from entering into our fervice: but contended, that the exception was confined to cafes where they fued for their wages.

EYRE Ch. J. This motion cannot be fupported in the cafe of any foreigner if he be refident in this country. Now the Court may affimilate the cafe of foreigners ferving on board English fhips, to that of foreigners refident in this country. Perhaps the prefent Plaintiff is ferving on board an English fhip bound to the port of London. He may, indeed, be a foreigner, but he is juft as amenable to the jurifdiction of the Court as any English failor in

(a) Henfchen v. Garves, & H. Bl. 383. and 384. n. b.

the

the fame fituation. The fame reafons which influenced the Court in their former decifions on this fubject, will influence them in the prefent cafe.

Le Blanc took nothing by his motion.

HIGGINSON v. NESBITT.

to

ADAIR, Serjt. on a former day having moved for leave enter up judgment in the firft inftance, on a verdict reduced by an award; the Court then thought that he could only apply for a rule to fhew cause.

He now mentioned it again, and ftated that it was the practice of the King's Bench to make the rule abfolute in the first instance, and added, that the practice of this Court feemed to have been fo confidered in a cafe of Higginfon v. Bell, in laft Trinity term, where a like motion with the prefent was granted.

The Court upon this made the

Rule abfolute. (a)

(a) Vid. etiam Grimes v. Naife, Poft 480. a cafe entitled to the poftea without any where it was held that the party was in fuch application to the Court.

JEYES One, &c. v. BOOTH.

in cuftody being

about to execute a warrant of

ADAIR, Serjt. obtained a rule calling on the Plaintiff to fhew If a Defendant caufe why the judgment entered up, and the ca. fa. iffued in this cafe, fhould not be fet afide with cofts, on an affidavit ftating, that the judgment was entered up on a warrant of attorney executed by the Defendant, when in cuftody in the Fleet prifon, he having no attorney present on his behalf.

attorney to coninformed that it fels judgment, is

muft be done in the prefence of

an attorney on his part, and duces a perfon

thereupon pro

as fuch, in whofe cutes the warprefence he exe.

The facts were thefe: The Defendant being in cuftody for the debt of a third perfon, but being fuperfedable, was informed, that if he was fuperfeded, he would be detained at the fuit of the Plaintiff, who was an attorney: upon this he fent for the Plaintiff, who by his direction prepared the warrant of attorney in queftion; the Defendant took it into his hand, read it, and was proceeding rant of attorney; to execute it, when the Plaintiff informed him that he must have an attorney on his part prefent at the execution; accordingly the Defendant went into another part of the prifon and brought with him a perfon, who being afked by the Plaintiff whether he was an attorney, answered in the affirmative; he was then defired to ex- not an attorney. plain the nature of the inftrument to the Defendant; and the

VOL. I.

H

warrant

the Court will

not fet afide the proceedings

the perfon fo produced by the

thereon, because

Defendant was

1797.

JEYES

V.

Вости.

warrant was executed in his prefence. It turned out afterwards that this perfon was not an attorney, but only a clerk to an attorney.

Le Blanc fhewed caufe and contended, that where a party produces a perfon as an attorney who in fact is not one, that party fhall 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 prefence of an attorney on the part of the Defendant, the Defendant accepts the inftrument, and takes upon himself to find out the perfon in whofe prefence he ought to execute it, the Court will not, for the purpofe of fuch a motion as this, doubt that fuch perfon was an attorney. The present application is founded on an attempt to cheat the Plaintiff.

Per Curiam,

(a) Vid. Bireb v. Sharland, 1 T. R. 715. Crompton v. Steward, 7 T. R. 19. Gillman v. Hill, Corp. 141. Hutfon v. Hutfon,

Rule discharged with cofts (a)

7 T.R.7. Fell v. Riley, Cowp. 281. Watkins v. Hanbury, 2 Str. 1245. Barnes v. Ward, Co. Ca. Prac. C. B. 158.

Nov. 11th.

The Mafter,
Wardens and
Commonalty of
a company, can-

not fue for a penalty forfeited to the Mafter and Wardens, to the ufe of the Mafter, Wardens, and come pany.

The ift count in a declaration in debt for a

penalty under a by-law, fet forth the charter impowering the company to make by-laws, the by-law made

and the breach

of it; The 2d

count, omitting the above par

The Mafter, Wardens, and Commonalty of FELT-
MAKERS v. DAVIS.

EBT on a by-law for 201. The 1ft count in the declaration
DEB
fet out a charter of 19 Car. 2. incorporating the Feltmakers'
Company, giving a power. to the Mafter, Wardens, and
Affiftants to make by-laws, and directing that the Wardens fhould
be chofen out of the Affiftants. It then ftated that a by-law was
made impofing a fine of 10l. on every member of the company,
who being chofen Renter Warden fhould refuse to take upon
himself that office, to be paid to the Master and Wardens for the
time being, for the use of the Master, Wardens, and Company;
that the Defendant became a member of the company, was elected
Affiftant, and took upon himself that office, and was afterwards
elected Renter Warden, which office he refused to serve, &c.
whereby, &c. The 2d count and the breach were as follows:
"And whereas alfo the faid William Davis, fo being a member of
the faid company heretofore, to wit, on, &c. at, &c. was indebted
to the faid Master, Wardens, and Commonalty of the art or

ticulars, ftated the penalty as being forfeited "under and by virtue of a certain by-law of the company before that time duly made," &c. and this count was on special demurrer held bad.

mystery