ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Note to the case of Howard v. Bartolozzi, ante, p. 555.

The following case was argued and determined in the Court of Exchequer, in Hilary term, 1834.

TABRAM, Gent., One, &c. v. FREEMAN.

An agreement by an insolvent about to take the benefit of the act, with his creditor, that the claim of the latter should be omitted in the schedule, and that a cognovit which he held shall be suspended, and revived after the debtor's discharge, was held by the Court of Exchequer to be fraudulent, and the cognovit and judgment signed, and execution issued thereupon after the discharge, were set aside with costs.

A RULE had been obtained, calling upon the plaintiff to shew cause why the cognorit, and judgment, and execution thereon, should not be set aside with costs. It appeared upon the affidavits, that the defendant was indebted to the plaintiff, and being about to take the benefit of the Insolvent Debtors' Act, employed the plaintiff, an attorney of the Insolvent Court, to procure and conduct his discharge; but it was agreed between them, that the plaintiff's debt should not be inserted in the schedule, and that a cognovit which had been given to secure it, should be suspended until after the defendant's discharge, and then revived. About two years afterwards, the plaintiff entered up judgment on the cognovit, and issued execution. The present rule was moved for on the ground that the agreement was a fraud upon the Insolvent Debtors' Court, upon the creditors of the insolvent, and upon the policy of the law.

Follett shewed cause. As to the agreement being a fraud upon the Court, no creditor being bound to come in, the Court could not be deceived by the omission of any particular debt. It is no fraud upon the creditors at large, because they have in fact each a greater present share of the insolvent's effects, than if another creditor had been added to their number. Nor is it a fraud upon the law, for the reasons given in Howard v. Bartolozzi (4 B. & Ad. 555).

[ocr errors]

Kelly in support of the rule. Such an agreement as this is a fraud upon the Court, the creditors, and the law. It is a direct agreement between the insolvent and his attorney, that the former shall forswear himself, and impose upon the Court; for by the Insolvent Debtors' Act, 7 G. 4, c. 57, s. 40, the debtor is to deliver in upon oath a true and correct account of all his debts. He swears falsely if he omit any debt in his schedule. The creditors are also defrauded, for by the fifty-seventh section the assignee may obtain a judgment and issue execution against the insolvent's after-acquired effects. If any single creditor can by agreement with the debtor withhold his debt, and immediately after the discharge sue for it and obtain a judgment, he may gain a priority of execution, and seize the whole after-acquired effects, to the prejudice of the other creditors. So it is a clear fraud upon the policy of the law, which contemplated the effectual and complete discharge of the person of the debtor, and the application of all his effects, present and future, to the fair and proportionate satisfaction of his debts. Howard v. Bartolozzi (4 B. & Ad. 555), was decided upon too limited a view of the Insolvent Debtors' Act. PER CURIAM (Bayley, Vaughan, Bolland, and Gurney, Bs.). This judgment cannot be permitted to stand. The plaintiff, by agreeing that a schedule, omitting his own debt, shall be delivered in under the statute, agrees that the defendant shall deceive the Court by a wilfully false statement upon oath, contrary to section 40 and 71, of the Insolvent Debtors' Act. This alone would avoid the agreement. But the creditors are also im posed upon. They have a right to believe that the debtor is set free, and that by his future exertions he may procure the means of supporting himself, and of satisfying their just claims. How can he do this if his person and his property are liable to an execution, whenever after his discharge, the plaintiff finds it advantageous to come upon him? The true scope and object of the statute appear to have been but partially considered in the case of Howard v. Bartolozzi. The intent of the statute was, that insolvents should lay before their creditors and the Court a fair and true statement of their affairs; that where they have been guilty of no misconduct, their persons should be discharged, and their property divided among their creditors; and that when discharged, they should be unincumbered with prior obligations, and free to seek their livelihood, subject to the right of the creditors to their future surplus property. All these objects might be defeated, if agreements like the present could be supported in law. The rule for setting aside the cognovit and subsequent proceedings, must be absolute with costs; and if the plaintiff be advised to try the correctness of our present decision before a higher tribunal, he may do so by prosecuting his action, and raising the question on the record.

(Ex relatione Kelly.)

END OF EASTER TERM.

Rule absolute.

AN

INDEX

TO THE

PRINCIPAL MATTERS.

ACCIDENTAL FIRE. See PAWNBROKER.

ACTION.

See MANDAMUS, 2. PRACTICE, 4.

ACTION ON THE CASE.
See MARKET, 1. PLEADINGS, 3, 4.

1. A reversioner cannot maintain an action on the case against a stranger, for merely entering upon his land held by a tenant on lease, though the entry be made in exercise of an alleged right of way, such an act during the tenancy not being necessarily injurious to the reversion. Baxter v. Taylor, M., 3 W. 4.

72

2. Plaintiff declared in case, that the defendants wrongfully and maliciously took his goods, of the value of 7007., as a distress for 1411. alleged and pretended to be due for a poor rate, whereby they levied an unreasonble and excessive distress for the said 141.; and it was proved that the defendants, overseers, having a regular distress warrant for the rate, distrained cattle, &c., of the plaintiff, to the value of more than 6007.:

Held, that the plaintiff was not bound to demand a copy of the warrant, pursuant to the 24 G. 2, c. 44, s. 6, before commencing his action, as the overseers had not acted in obedience to the warrant, and no action would have lain against the justices.

Held, further, that it was not a question to be left to the jury, on these facts, whether or not the defendants acted maliciously.

And, on motion in arrest of judgment, held that the declaration, though it did not expressly admit any poor rate to have been due, (on which ground it was objected that the action ought to have been trespass,) was sufficient, at least, after verdict. Sturch v. Clarke and two others, M., 3 W. 4. 113 3. Declaration stated, that plaintiff, being the inventor and manufacturer of metallic hones, used certain envelopes for the same, denot

ing 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. Blofield v. Payne, H., 3 W. 4

410

4. 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 rexatiously 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. Smith v. Goodwin, H., 3 W. 4.

[blocks in formation]

ADVERTISEMENT.

See ASSUMPSIT, 5.

AFFIDAVITS.

See ARREST, 2. JUDGMENT. JURYMAN. MAN

DAMUS, 5.

AGREEMENT.

See STAMP.

AMENDMENT.

See APPEAL, 3. PLEADING, 5. POOR RATE, 3.

PRACTICE, 4.

ANNUITY.

See WARRANT ON ATTORNEY, 2.

1. By statute 1 & 2 G. 4, c. cxvii., incorporata gas light company, it was enacted that the directors should have the custody of the common seal, and power to use it for the affairs and concerns of the company, who were themselves, by another clause, empowered to make orders under seal at their meetings for the government of the company, and for regulating the proceedings of the directors. No power was expressly given by the act to grant annuities. At a special meeting of the company, a committee previously appointed for certain purposes, reported that it was expedient that the then clerk, whose health was bad, should be invited to retire upon a pension, on condition of abstaining from acts prejudicial to the company; that such proposal had been made to him, and that he had accepted it. The meeting voted, that the report should be received and entered on the minutes, and that the directors should carry into effect the committee's recommendation. No order to this effect was made under seal. The directors, by deed, in the name of the company, granted an annuity to the clerk on his retirement, subject to the conditions of the nature above stated, aud they put the corporate seal to it: Held, the seal was properly affixed by the directors; that the granting of such annuity was warranted by the statute; that it was a concern of the company, within the first-mentioned clause; and that no order of the company under seal was necessary to authorize it. Clarke v. The Imperial Gas Light and Coke Company, 3 W. 4. 315 2. A rector, after the statute 13 Eliz. c. 20, had been repealed, and before its revival by 57 G. 3, c. 99, demised his rectory to a trustee for ninety-nine years to secure an annuity. After the passing of 57 G. 3, c. 99, by deed reciting the grant of the former annuity, and that A. had agreed to purchase of the grantor an annuity of 5747. a year for 44007., and out of that sum to pay off the former annuity, and that that annuity, and the term created to secure the same, should be assigned to a trustee for A.'s benefit, the rector granted the said annuity of 5741. chargeable on his rectory, and the trustee of the term created to secure the annuity of 1813, assigned it to the trustee for the benefit of A.:

Held, that inasmuch as the term was created after the passing of the 43 G. 3, c. 84, which repealed the 13 Eliz. c. 20, the assignment of it, though for the purpose of securing the payment of an annuity charged on the benefice after the passing of the 57

[blocks in formation]

1. Notice was given of appeal against a poor rate, and the respondents attended at the sessions and prayed a respite, alleging that they had not had time to prepare their defence to the matters stated as grounds of appeal. The appellant opposed the respite: but it was granted, no notice of appeal having been proved or expressly admitted. An order of respite was made out embodying the grounds of appeal stated in the notice:

Held, that, at the following sessions, the appellant was entitled to be heard without proving any notice of appeal. The King v. The Justices of Hertfordshire, H., 3 W. 4.

561 2. An order of removal "to the parish of L." was directed "to the churchwardens and overseers of the parish of L." There were no such officers, but the parish was divided into three hamlets, A., B. and C., each maintaining its own poor, and having separate officers. The pauper, with the order, was delivered by the officers of the removing parish to the officers of the hamlet of A.: Held, that a notice of appeal given in the name of the officers of the hamlet of A., and reciting the order to be for removal to the hamlet of A., in the parish of L., could not, under these circumstances, be objected to by the respondents, and that the appeal ought to have been heard. The King v. The Justices of Carmarthenshire, H., 3 W. 4. 3. Paupers were removed to the township of Bingley: the township does not maintain its own poor, but is in the parish of Bingley, which does: Held, that the order was informal, but the sessions might amend it. The King v. The Inhabitants of Bingley, H.,

3 W. 4.

563

567

4. In a notice of appeal against an order for stopping up a footway (under 55 G. 3, c. 68, 8. 3), it sufficiently appears that the appel lant is a party aggrieved, if it be stated that he and his tenants, occupiers of a farm and lands near the said way, and who have heretofore used, and have a right to use it, and also other persons, and the public will be put to great inconvenience.

The statute requires "ten days'" notice of an appeal to the sessions against such order. By a rule of the West Riding sessions, in cases of appeal, "not otherwise directed by

law," "ten days' " notice is to be given, exclusive of the day of notice and first day of the sessions: Held, that the statute meant ten days' notice, one inclusive and the other exclusive; that the sessions' rule did not apply to this case, or, if it were intended to do so, this Court would use its discretionary power of controlling the practice.

The appellant gave notice of appeal against three orders, all of the same date; he attended the clerk of the peace to enter them, and the entry was in the following form: A., appellant, against an order of B. and C., esquires, dated, &c. for stopping up footways in, &c. He paid the fee as upon one appeal. At the sessions, the appellant's counsel being called upon to elect which appeal he would proceed with, proved his notices upon one, which was dismissed on a supposed defect of notice, and the order confirmed, as were the two others, nothing being said of the appeals against these, to which the same objections would have applied. On motion for a mandamus to enter continuances and hear the appeals, it appearing that the preliminary objection taken was unfounded, and that the appellant had in reality intended to enter his appeal against all the orders, this Court made the rule absolute as to all three. The King v. The Justices of the West Riding of Yorkshire, E., 3 W. 4.

APPOINTMENT.

See EVIDENCE, 6. TREASURer.
ARBITRAMENT.

See MANDAMUS, 2. PARTNERSHIP, I.
ARREST.

685

1. A defendant arrested on an irregular writ de contumace capiendo, was brought up by habeas corpus before a judge to be discharged. Immediately after his discharge, and before he had time to return home, he was again arrested on a similar writ for the same matter: Held, that he was protected from arrest redeundo. The second writ was sued out of Chancery without any return made to the first nevertheless it was held to be ragular. The King v. Blake, M., 3 W. 4.

355 2. The Court will interfere to discharge a party from arrest, or set aside the bail-bond, where it appears plainly on the face of the matter, that the arrest was groundless, but not where it would become necessary to try the merits of the case on detailed and contradictory statements in several affidavits.

It is not sufficient ground for such interference, that the defendant, denying that he is indebted and advancing a number of facts in support of such denial, alleges his belief that the action is brought for the purpose of obtaining from him by intimidation a release of certain covenants; and states that the plaintiff, or his attorney in his presence, on being refused such lease a week before the arrest, declared that some strong measure must be adopted against the defendant. Burton v. Haworth, H., 3 W. 4.

ARREST OF JUDGMENT.
See ASSUMPSit, 3.

460

ASSIGNEES OF INSOLVENT DEBTOR. See FRADULENT CONVEYANCE.

ASSIGNMENT.

See BANKRUPT, 5. ASSIGNMENT OF TERM. See ANNUITY, 2. ASSIZES.

See JUDGMENT.

ASSUMPSIT.

See PAYMENT OF MONEY INTO COURT. 1. In assumpsit on a special contract, and for money had and received, &c., defendant pleaded the general issue, and to the common counts a tender; and he paid money into Court upon a rule in the common form, not applying in terms to any particular count: Held, that such payment could not be referred exclusively to the counts as to which a tender was pleaded, but that it applied to the whole declaration, and admitted the special contract. Bulwer v. Horne, M., 3 W. 132

4.

2. A. and others were part owners of a ship in the service of the East India Company. B. was managing owner, and employed C. as his agent for general purposes, and amongst others, to receive and pay moneys on account of the ship; and C. kept an account in his books with B., as such managing owner. In order to obtain payment of a sum of money due from the East India Company on account of the ship, it was necessary that the receipt should be signed by one or more of the owners, besides the managing owner, and upon a receipt signed by B. and one of the other owners, C. received on account of the ship 20007. from the East India Company, and placed it to B.'s credit in his books. The part owners having brought money had and received, to recover the balance of that account: Held, that C. had received the money as the agent of B., and was accountable to him for it; that there was no privity between the other part owners and C., and consequently that the action was not maintainable. Sims and Others v. Brittain and Others, M., 3 W. 4.

375

3. Declaration stated that W. P. owed the plaintiff 131., and that in consideration thereof, and that W. P., at the defendant's request, had promised defendant to work for him at certain wages, and also in consideration of W. P. leaving the amount which might be earned by him in the defendant's hands, he the defendant undertook and promised to pay the plaintiff the sum of 137. Averment, that W. P. performed his part of the agreement. Judgment arrested, because the plaintiff was a stranger to the consideration. Price v. Easton, H., 3 W. 4.

433

4. The solicitor to the assignees of a bankrupt received from them a sum of money, to be applied in payment of the costs of the petitioning creditor, up to the time of the choice of assignees. The solicitor offered to pay the money on condition that the bill should undergo a subsequent taxation, but to that the petitioning creditor would not assent: Held, that the latter could not maintain money had and received thereupon against the solicitor, though, after the above offer, he had authorized the solicitor to pay over part of the money in discharge of commissioners' fees. Baron v. Husband, E., 3 W. 4. 611

621

5. A., by public advertisement, stated, that whoever would give information which should lead to the discovery of the murder of B. should, on conviction, receive a reward of 207. Held, that C., who gave such information, was entitled to recover the 201., though she was led to inform, not by the proffered reward, but by other motives. Williams v. Carwardine, E., 3 W. 4. 6. An auctioneer, employed by a supposed executrix, sold goods of the testator; but before payment, the real executrix claimed the money from the buyer: Held, that the auctioneer could not afterwards maintain an action against the buyer, though the latter had expressly promised to pay on being allowed to take away the goods, which he did. Dickenson v. Naul, E., 3 W. 4. 7. Where a party has employed two attorneys, partners, to manage a cause for him in the Palace Court, an action in the common form lies against him at the suit of both for the bill of costs, though one only was an attorney of the Court, and actually did the business there.

638

Although the client gave a written retainer to the latter attorney only, and he only was mentioned in the rule for taxing costs, these facts were held not conclusive, there being evidence, aliunde, of a contract with both. J. and R. Arden, Gents., &c. v. Tucker, Gent., One, &c., E., 3 W. 4. 815

ATTACHMENT.
See PRACTICE, 6.
ATTESTATION OF BOND.
See ATTORNEY, 3.
ATTESTATION OF WILL.
See DEVISE, 2.

ATTORNEY.

See EVIDENCE, 5. LIBEL. PRACTICE, 3.
WARRANT OF ATTORNEY, 1.

1. The rule of Trinity term, 21 G. 3, which empowers the marshal of the King's Bench to regulate the admission of persons to visit the prisoners, does not authorize him at his pleasure to prevent an attorney from visiting his client in the prison, but he must have some ground to show for so doing, provided the attendance of such attorney is on the client's business, and necessary to or required by him. Ex parte Matanle, M., 3 W. 4. 365 2. In an action against attorneys for negligence, it appeared that the plaintiff employed the defendants to conduct an action for him against a surveyor of turnpike roads, for alleged trespasses. The surveyor had seized and impounded plaintiff's sheep, as having been found straying on the road: the plaintiff regained possession of them, by promising the pound keeper to pay the proper charges, and drove them home; on the same day the surveyor retook the sheep in the plaintiff's field, and again impounded them. The first and second taking were in Surrey, but on an intermediate day the sheep had escaped, and been impounded in Sussex. The turnpike act 4 G. 4, c. 95, s. 75, only authorises surveyors to impound sheep found on a turnpike road. The general turnpike act 3 G. 4, c. 126, s. 147, (incorporated in

the above statute by reference) requires that actions against any person for any thing done in pursuance of the act, shall be commenced within three months, and the venue laid in the county where the cause of action

arose.

The attorneys commenced the action within three months, and had a declaration drawn by counsel, who returned it with an observation indorsed, that it would have been prudent to have joined two other parties. The attorneys thereupon (with the plaintiff's assent) discontinued the action, and brought another after the expiration of the three months, laying the venue in Sussex. The declaration was settled by counsel, and the case afterwards submitted to a special pleader, who gave as his opinion, that the protecting clause of 3 G. 4, c. 126, did not apply to the trespass in seizing the sheep in the plaintiff's field. The plaintiff went to the trial, and was nonsuited, on account of the action being out of time and the venue improper, with leave to move, which was done without success:

Held, that this was not a case of actionable negligence in the attorneys.

Quære, whether the surveyor, in making the second seizure, was within the protection of 3 G. 4, c. 126, as acting in pursuance of that statute, or 4 G. 4, c. 95: Held, that at all events, there was so much doubt on this point, that the attorneys, if mistaken upon it, were not therefore culpably negligent. Kemp v. Burt and others, H., 3 W. 4. 425 3. An attorney's bill for business done in the county court is within the statute 2 G. 2, c. 23, s. 23, and must be delivered to the client one month before action brought.

A charge for attesting a replevin bond is a charge relating to a suit in that court. An attorney not having delivered any bill to his client before action brought, but particulars of demand, containing some taxable items, after action brought, cannot recover for an item not taxable, if such item be in respect of business done or money paid to his client's use, in his character of attorney. Wardle v. Nicholson, H., 3 W. 4. 469

4. An attorney employed by a party about to take the benefit of the Insolvent Act, to prepare a list of debts, which were afterwards to be inserted in the schedule, omitted a debt due from the insolvent to himself, and sued for that debt after the party's discharge: Held, by Denman, C. J., and Parke, J., that this was not such a fraud upon the general policy of the Insolvent Act as would bar the action. Quære, whether, if he omitted to insert the debt in breach of his duty to his client, that would be a defence to an action brought by him against the latter to recover the debt, or whether it would only be the subject of a cross action? If a defence, quære whether or not it should be specially pleaded? Howard, Gent., One, &c. v. Bartolozzi, H., 3 W. 4.

555

5. Plaintiff's attorneys gave defendant's attor neys their own undertaking as security for costs; the defendant obtained a verdict and died, and judgment was entered up in his name within two terms: Held, that the attorney for such deceased party, having a claim against his estate in respect of the costs, might enforce the security to satisfy

« ÀÌÀü°è¼Ó »