cessarily end in a debt, from each party to the other, Rose v. Sims, 1 B. & Ad. 521. Here the bankrupt was indebted to the plaintiffs on his acceptance, and had the stanhope in his possession for repairs, which must necessarily have created a debt from the plaintiffs to him. The definition of a mutual credit in Rose v. Sims, 1 B. & Ad. 521, agrees with the *construction before put [*406 upon that term, in cases under the statute 5 G. 2, c. 30, s. 28, French v. Fenn, Cooke's Bankrupt Law, 65, 8th ed., Olive v. Smith, 5 Taunt. 56. In Rose v. Hart, 8 Taunt. 499, where the doctrine was in some degree limited, Gibbs, C. J., nevertheless lays it down, that by mutual credit are meant such transactions as must, from their nature, terminate in debts. The clause there in question, in 5 G. 2, c. 30, does not materially differ from 6 G. 4, c. 16, s. 50, except that in the latter it is said, that one debt or demand may be set against another; in the former the word "debt" only is used. As to the stipulation for ready money, the only effect of that was to make the sum due as soon as the repairs were finished; it does not affect the question of mutual credit: and the plaintiffs did, when the repairs were finished, offer payment by striking off the 207. from the amount of the bill of exchange. Nor is it material that the amount to become due for the repair was not ascertained at the time of the bankruptcy, the work not being then finished. The assignees must either repudiate the contract or affirm it. In the former case, they are without defence to this action; in the latter, as was held by Lord Kenyon in Smith v. Hodson, 4 T. R. 217, they must adopt the transaction with all its consequence, and subject to any defence by the opposite parties which they might have made to an action by the bankrupt himself: those parties, therefore, may set off the debts owing to them by the bankrupt, against the claims of the assignees. The transaction was inchoate before the bankruptcy: the assignees take it up, subject to the rule of mutual credit, which would have attached if the work had been completed by the bankrupt.

*LITTLEDALE, J. I think, under the circumstances of this case, there was no mutual credit of a nature to exclude the lien insisted upon by the [*407 defendants. If there had not been a contract to pay ready money, I should have been of a different opinion; for, although in that case there would still have been a lien on the carriage for the work done by the bankrupt, yet, as the bankrupt was also indebted to the plaintiffs, the question would have been on which side the balance lay, and that was in favour of the plaintiffs. But the agreement to pay ready money makes all the difference; the plaintiffs could not have insisted on a delivery of the stanhope by the bankrupt until the sum due for repairs had been paid by them in hard cash; if they had brought trover, the defence would have been, that they had not paid ready money for the repairs; and it would have been no answer to say that more was due to them from the bankrupt. If, indeed, the defendants had delivered the stanhope without insisting on the agreement for ready money, and afterwards brought an action, the set-off on the other side would have been let in, Cornforth v. Rivett, 2 M. & S. 510. Since, then, the plaintiffs, before they could have insisted upon the delivery of the stanhope, were bound to pay for the repairs, and the bankrupt might, on that ground, have defended an action of trover against them, the assignees, in adopting his contract, are entitled to the same benefit. The other point, therefore, as to the consequence of the work being completed after the bankruptcy, does not arise, though it might be argued from the case of Trewhella v. Rowe, 11 East. 435, that the assignees, under these circumstances, might be considered as having *taken upon themselves the fulfilment of a contract made before their [*408 title accrued, between the bankrupt and the plaintiffs: and that if the assiguces so adopted it, they must be taken to have done so on the original terms. But it is unnecessary to consider this point. There will be no rule.

TAUNTON, J. I think there was no misdirection in this case. As to one point, which was mentioned incidentally, I am of opinion, that the offer by the plaintiffs to deduct the charge for repairs for the amount due on the bill was

different from an offer of ready money; though if there had been a tender of ready money, the subsequent detaining of the carriage would have been a wrongful conversion. Then as to the more general question. For some purposes there was a mutual credit in this case; if the plaintiffs had gone before the commissioners to prove their demand on the bill, there was so far a mutual credit that the assignees might have said, "There is so much due to the estate for repairs; the commissioners must state the exact balance, and allow that and no more to be proved." And this is for the benefit of the party trusting the bankrupt. But no such proceeding took place if it had, the right to detain would have been gone, because the assignees would, in this way, have received payment of their demand. The question here, therefore, is, whether the credit was such as, on the bankruptcy of Mott, annulled his bargain with the plaintiffs; that bargain being, in effect, that unless he was paid in ready money, he should be at liberty to detain the carriage. I think the bankruptcy did not annul that bargain, nor deprive the bankrupt's estate of the benefit of that lien. There *409] was no payment, for the offer to allow a set-off was not equivalent to one; and the mutual credit was not of such a nature as to destroy the lien. As to Rose v. Hart, 8 Taunt. 499, all that was decided in that case was, that the defendant could not, by virtue of a supposed mutual credit, detain the goods of a party who had become bankrupt for a general balance. Here the claim is to a lien on the particular article for the work done upon it.

PATTESON, J. I am of the same opinion; and I ground it entirely on the finding of the jury as to the agreement for ready money. Suppose there had been no bankruptcy; before the plaintiffs could have obtained the stanhope back, they must have paid the 207., notwithstanding their cross demand, though, according to Cornforth v. Rivett, 2 M. & S. 510, if the bankrupt had delivered up the stanhope, the plaintiffs might have set off their cross demand in an action for the amount due. Then if the plaintiffs could not have set off the debt due to them as against the claim of Mott to be paid ready money pursuant to the agreement; the question is, whether they can, in like manner, avail themselves of that claim as against his estate, under the clause of mutual credit in the bankrupt act? I admit that the law of mutual credit under the bankrupt act goes farther than the ordinary law of set-off: Rose v. Hart, 8 Taunt. 499, Buchanan v. Findlay, 9 B. & Č. 738, and Rose v. Sims, 1 B. & Ad. 521, shew this and I agree with Mr. Cleasby that there is a mutual credit within the act, where a debt, or that which will terminate in a debt, exists on each side; but the question in this case is, whether the bankruptcy of one party does away with an express contract establishing a lien for payment of a particular debt. I find no case which decides that it can; and I think there is no ground for the rule.

*410]

DENMAN, C. J., concurred.

Rule refused.

BLOFELD v. PAYNE and Another. Jun. 12.

Declaration stated, that plaintiff, being the inventor and manufacturer of metallic hones, used certain envelopes for the same, denoting them to be his: and that defendants wrongfully made other hones, wrapped them in envelopes resembling the plaintiff's, and sold them as his own, whereby the plaintiff was prevented from selling many of his hones, and they were depreciated in value and reputation, those of the defendants being inferior:

Held, that the plaintiff was entitled to some damages for the invasion of his right by the fraud of the defendants, though he did not prove that their hones were inferior, or that he had sustained any specific damage.

CASE. The declaration stated that the plaintiff was the inventor and manufacturer of a metallic hone for sharpening razors, &c., which hone he was accus

tomed to wrap up in certain envelopes containing directions for the use of it, and other matters; and that the said envelopes were intended, and served, to distinguish the plaintiff's hones from those of all other persons; that the plaintiff enjoyed great reputation for the good quality of his hones, and made great profit by the sale thereof; that the defendants wrongfully and without his consent caused a quantity of metallic hones to be made and wrapped in envelopes resembling those of the plaintiff, and containing the same words, thereby denot ing that they were of his manufacture, which hones the defendants sold so wrapped up as aforesaid, as and for the plaintiff's, for their own gain, whereby the plaintiff was prevented from disposing of a great number of his hones, and they were depreciated in value and injured in reputation, those sold by the defendants being greatly inferior. Plea, the general issue. At the trial before Denman, C. J., at the sittings in London after last term, *it appeared that the defendants had obtained some of the plaintiff's [*411 and wrappers, used them as stated in the declaration; but no proof was given of any actual damage to the plaintiff. The questions left by his Lordship to the jury were,. first, whether the plaintiff was the inventor or manufacturer? and, secondly, whether the defendants' hones were of inferior quality? but he stated to them that even if the defendants' hones were not inferior, the plaintiff was entitled to some damages, inasmuch as his right had been invaded by the fraudulent act of the defendants. The jury found for the plaintiff, with one farthing damages, but stated that they thought the defendants' hones were not inferior to his. Leave was reserved to move to enter a nonsuit.

Barstow now moved accordingly. The special damage alleged in the declaration was of the very essence of the case, and the plaintiff having failed to prove it, no ground of action remained. The whole struggle between the parties was, whether or not the defendants' hones were inferior to the plaintiff's, and the jury found that they were not. The declaration was not supported.

LITTLEDALE, J. I think enough was proved to entitle the plaintiff to reCover. The act of the defendants was a fraud against the plaintiff; and if it occasioned him no specific damage, it was still, to a certain extent, an injury to his right. There must be no rule.

TAUNTON, J. I think the verdict ought not to be disturbed. The circumstance of the defendants' having obtained the plaintiff's wrappers, and made this use of them, entitles the plaintiff to some damages.

*PATTESON, J. It is clear the verdict ought to stand. The defen[*412 dants used the plaintiff's envelope, and pretended it was their own: they had no right to do that, and the plaintiff was entitled to recover some damages in consequence.

DENMAN, C. J., concurred.

Rule refused.(a)

In the Matter of Arbitration between WILLIAM LOWE and WILLIAM

HENRY JOHNSON.

The Court will not grant an attachment without personal service, in any case where the party applying has another remedy.

THE parties submitted to arbitration, and the submission was made a rule of Court. The award was against Lowe. Attempts having been made without success to serve him with copies of the award and rule of Court, Kelly, in the last term, moved, on affidavits setting out the special facts, for a rule to shew cause why an attachment should not issue for non-performance of the award. The Court thought that proper exertions had been made, but as the end of the

(a) See the judgment of Taunton, J., in Marzetti v. Williams, 1 B. & Ad. 425, and the authorities there cited.

term was near, they recommended that the matter should stand over till this term, and in the mean time further endeavours be used to effect a personal service. In the beginning of this term Kelly renewed his motion. There had been no personal service, and it appeared that the party knew it was intended, and avoided it.

PER CURIAM. We have considered this matter, and are of opinion that we ought not to grant an attachment *without personal service in any case where the party applying has another remedy. Rule refused. (a)

*413]

The party was afterwards served, and shewed cause.

SMITH v. GOODWIN and RICHARDS. Jan. 14.

After distress made by a broker, in a case within 57 G. 3, c. 93, the rent and charges may still be tendered to the landlord.

Declaration contained six counts in case; the seventh charged that the defendants took and distrained the goods of the plaintiff for rent, of more than sufficient value to satisfy the rent and costs, and then voluntarily abandoned the same, and afterwards wrongfully, injuriously, and vexatiously again took and distrained the same goods for the same rent, and refused to return the same, and converted them to their own use: Held, on motion in arrest of judgment for misjoinder of case and trespass, that although this second taking of the goods was a trespass, yet the plaintiff might bring case for the conversion, and that the count was an informal one in case, and sufficient after verdict.

THE first six counts of the declaration were in case, for an irregular distress. The seventh count was as follows: That, before the committing of the griev ances next mentioned, to wit, on the 31st day of August 1831, the defendants took and distrained certain goods as a distress for rent then alleged to be due from the plaintiff to the defendant Goodwin, for and in respect of certain premises in the possession of the plaintiff, which goods were of more than sufficient value to have satisfied the rent, and the costs and charges attending such distress, and the sale of the goods under such distress, and incidental thereto; that the defendants having so taken and distrained the goods, had and retained possession of the same under such distress for a long space of time, to wit, five days then following, and, afterwards, and at the expiration of the said space of time, the defendants voluntarily abandoned the possession of the said goods, and the said distress thereon, and although the said defendants under the said distress, and by virtue thereof, could and might have satisfied the said arrears of rent, and all reasonable and lawful charges in *that behalf; nevertheless, *414] the defendants knowing, &c. but contriving, &c., to wit, on the 7th day of September 1831, wrongfully, injuriously, and vexatiously made a second distress upon goods of the plaintiff for the same identical alleged arrears of rent, in respect whereof the distress first-mentioned was made as aforesaid, and again took the said goods as a distress for the same rent so pretended to have been due as aforesaid, and wrongfully and injuriously refused to return the same to, and withheld them from the plaintiff under the said second distress for a long time, to wit, six days then following, and converted and disposed thereof to their own use, although requested to deliver the said goods to the plaintiff; whereby the plaintiff is injured in his credit and circumstances. The eighth count was in trover. Plea, not guilty.

At the trial before Denman, C. J., at the Middlesex sittings after last Michaelmas term, the following appeared to be the facts of the case :-The plaintiff was tenant to Goodwin, at a yearly rent of 251. Half a year's rent having become due at Midsummer 1831, on the 31st of August the defendant Richards, by Goodwin's order, distrained on the premises. On the 2d of September, Smith,

(a) See In the Matter of Bower, 1 B. & C. 264.

the plaintiff, tendered to Goodwin (the landlord) twelve sovereigns and a half for the rent, and thirteen shillings for expenses, which he (Goodwin) refused to accept, saying, that he had left the matter in the hands of Richards, and that Smith must settle with him. On the 3d of September, the plaintiff tendered to one Nash, the man in possession, 137. 3s. for rent and expenses, and demanded a receipt, which Nash being unable to give, the money was not paid. Nash then abandoned the possession; but Richards, on the 7th of September, by Goodwin's command, re-entered. Smith, to prevent his goods from being sold, paid the money under protest; and he brought the present action for the distress of the 7th of September. The Lord Chief Justice was of opinion that the tender to Goodwin was a good tender, and directed the jury to find a verdict for the plaintiff. The jury found for the plaintiff, damages 107.

[*415

Coltman now moved, first, for a new trial, on the ground of misdirection, or, secondly, to arrest the judgment on the ground that there was a misjoinder, the first six counts being in case and the seventh in trespass. Where a party has employed a broker to make a distress, he is the person to whom the tender should be made; he is the agent of the landlord for the purpose of receiving the rent; and having an interest in part of the money to be tendered, viz. the costs of the distress, he is the person with whom the settlement ought to be. The 57 G. 3, c. 93, which regulates the costs of distresses below a certain amount, recognizes the broker as the person who is entitled to receive certain costs from the tenant, and prevents him from taking more than certain specified sums; and, in case he does so, subjects him to pay treble the amount of the moneys unlawfully taken. Section 4, authorizes the justice to give costs to the party complained against, if the complaint be unfounded; and there is a proviso that the act shall not empower the justice to make any order against the landlord for whose benefit any such distress shall have been made, unless such landlord shall have personally levied such distress. The proper tender, therefore, in this case, was to the broker. The landlord was entitled to throw on *him the burden of fixing the amount of charges, and was right in refusing to accept the tender made to himself personally.

[*416 Assuming, however, this to be an insufficient ground for a new trial, the judgment ought to be arrested. The seventh count, if considered a count in case, is bad, as shewing a trespass. If in trespass, it is a misjoinder, and the damages being entire, the judgment must be arrested. Now the second seizure of the goods alleged in that count being one without any right, is a substantive trespass. In Winterbourne v. Morgan, 11 East, 395, a party who had entered under a warrant of distress for rent in arrear continued in possession of the goods upon the premises for fifteen days, during the four last of which he was removing the goods, and they were afterwards sold under the distress: he was held to be a trespasser for continuing on the premises, and disturbing the plaintiff in the possession of the house after the time allowed by law. So in Wallis r. Saville, 2 Lutw. 1532, the declaration was trespass for taking the plaintiff's cattle at two several times; the defendant pleaded a demise, and 777. 10s. rent in arrear, and that he took the first distress for 627. parcel of the rent, and the second distress for 157 10s. residue of the rent; and judgment was given for the plaintiff, because the second distress was not legal. Here the case is much stronger for the allegation is, that the defendants voluntarily quitted and abandoned the possession of the goods seized under the first distress, and that they afterwards, on the 2d of December, seized the same goods a second time for the same rent. That second distress was a substantive act of trespass.

*DENMAN, C. J. We are all of opinion, that the tender to the landlord was sufficient; but that on the other point there should be a rule.

[*417

LITTLEDALE, J. The tender to the landlord, the party to whom the rent was due, was sufficient in this case. The 57 G. 3, c. 93, has no application to a case like this. It only applies to costs; and it does not supersede the authority