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would arise from it, it is difficult to imagine that the legislature would have made it at all; and if they intended to make it, it is reasonable to suppose that they would have made it by a positive and express enactment. It is true, that the 130th section contains provisions expressly avoiding the certificate in certain cases; but those are for matters extrinsic, as for losing money at play, gambling in the funds, destroying or *falsifying or making false entries in his books, [*83 concealing property to the value of 107. or upwards, &c. But no inference arises from this section, we think, that the legislature did not mean to impeach the certificate for fraud connected with the very obtaining of the certificate; and if it were otheswise, the consequences would be serious; for then the legislature would have provided no check against this sort of fraud, except the provision in the 125th section, rendering the contract to pay the stipulated consideration invalid. The certificate could not be impeached at law for fraud; and it would be difficult to support the authority of the Chancellor to cancel the certificate for the same reason; for if the legislature have meant that the objection of fraud shall not be used against a certificate, it must apply equally to all courts. The result would be, that the fraudulent bankrupt would obtain an advantage which he would not be backward to use.

Our opinion therefore is, that the legislature had no such intention as has been contended for, and that the certificate of the defendant may be and is invalidated on the ground of the fraud which has been found by the jury. The rule for entering a nonsuit must be discharged. Rule discharged.

*DOE dem. RANKIN v. BRINDLEY. Nov. 5.

[ *84

A lease contained a proviso for re-entry in case of non repair within three months after notice. The landlord gave notice, and before the end of the three months, (which would have expired in Hilary vacation 1832,) brought an ejectment. During the three months the cause came on for trial, and the parties agreed to an order of Court, directing that a juror should be withdrawn, and the repairs done by Midsummer. Default being made, the landlord brought a second ejectment, without further notice, in Trinity vacation, under the statute 11 G. 4, and 1 W. 4, c. 70, s. 36.

Held, first, that the former notice had not been waived.

Secondly, that it could not be objected at nisi prius that the action had not been commenced within ten days after the right of entry accrued, pursuant to the act, this being merely matter of irregularity: and further, that the objection was not well founded, the right of entry having been only suspended by agreement of the parties.

EJECTMENT for messuages, mills, &c. At the trial before Lord TENTERDEN, C. J., at the last Summer assizes for Kent, the facts appeared to be as follows: The defendant held oil-mills, &c. of the lessor of the plaintiff, by a lease containing covenants to repair, to fence and keep up fences, and to insure; and there was a proviso for re-entry, if at any time the premises or the fences should not be repaired within three months next after notice in writing given by the landlord, or in case of breach or default in the other covenants. There was no specific covenant to repair within three months after notice. On the 6th of January 1832, the lessor of the plaintiff gave the defendant a written notice to do certain repairs to the mills within three months. On the 10th he served the defendant with a declaration in ejectment. That action, as appeared by the particulars of demand, was grounded on forfeitures said to be incurred by not sufficiently fencing the premises, and by not insuring; but the first ground was abandoned. The cause came on for trial at the ensuing Lent assizes (March 12th, 1832); when an order of Court was made by consent of the parties, that a juror should be withdrawn, and that the defendant should put the mills in repair, to the satisfaction of surveyors and an umpire, on or before the following

24th of June. On the 28th of March the lessor of the *plaintiff ac*85] cepted rent for the quarter ending on the 25th. The repairs were not done pursuant to the order of Court; and the defendant was thereupon served with a declaration in the present action, entitled, "Thursday, 28th of June, in Trinity term, 2 W. 4," the demise being laid on the 27th under the statute 11 G. 4, and 1 W. 4, c. 70, s. 36, 37. The particulars of demand stated this action to be brought for breach of covenant in not repairing. A verdict having

been found for the plaintiff,

Thesiger now moved for a new trial, on two grounds. First, no power of reentry for non-repair is given by the lease, without a three months' notice. Here a notice was given previously to the first ejectment, but the landlord waived it by assenting to the order of Court, made at the Spring assizes, which enlarged the time for repairing, and in other respects introduced new terms, Doe dem. Morecraft v. Meux, 4 B. & C. 606. The acceptance of a quarter's rent afterwards was also a waiver. And no further notice having been given, it is the same with reference to this action, as if there had never been any. Secondly, if the notice of the 6th of January continued in force, the landlord became entitled to re-enter in the following April; and the statute 11 G. 4, and 1 W. 4, e. 70, s. 36, which authorizes the service of declaration in Hilary and Trinity vacations, requires it to be served within ten days after the right of entry acrues. The present ejectment, therefore, was improperly commenced.

It

*PARKE, J. I think there ought to be no rule. As to the first point, *86,] the notice to repair was given on the 6th of January, 1832; and the right of re-entry, in default of repair, would have accrued in three months from that time. Before the expiration of the three months, an ejectment was brought; and the lessor of the plaintiff being unable to support that action, put an end to it by consenting to the order of Court made at the March assizes, 1832. was the same as if the parties after the 6th of January, and before the expiration of the three months, had made an agreement between themselves, that the time for repairing should be extended to the 24th of June: it was merely a consent to postpone the time of completing the repair for the benefit of the defendant; and on his failing to comply with the terms, the lessor of the plaintiff might justly insist on his right of entry, and bring a new ejectment after the expiration of the enlarged time. The receipt of rent was only an admission that the defendant was tenant until the 25th of March, and could not operate as a waiver of the forfeiture. As to the objection founded on the statute 11 G. 4, and 1 W. 4, c. 70, s. 36, it seems to me that that could not be taken at nisi prius; and if it could, the answer is, that the landlord's right to re-enter, which is said not to have been enforced in proper time, was postponed by agreement of the parties.

TAUNTON, J. I am of the same opionion. The order of nisi prius did not supersede the notice, but only enlarged the time and suspended the right of re-entry.

*87] *PATTESON, J. The notice to repair may be connected with the agreement at nisi prius in the first ejectment. The other point is mere matter of irregularity. Rule refused.

CROSFIELD and Another, Assignees of BROSTER, v. Sir THOMAS STANLEY MASSEY STANLEY, Baronet. Nov. 5.

The statute 1 W. 4, c. 7, s. 7, exempting judgments on cognovit, and by default, confession, or nil dicit, in any action commenced adversely and without collusion, from the operation of s. 108, of the bankrupt act, 6 G. 4, c. 16, does not extend to judgments on warrant of attorney, though given without collusion or intention of fraudulent preference. And a sheriff having seized and sold goods on an execution issued upon such judgment,

and paying over the proceeds after notice of an act of bankruptcy committed by the defendant, is answerable to the assignees for money had and received.

ASSUMPSIT for money had and received by the defendant, late sheriff of the county of Chester, to the use of the plaintiffs as assignees of Broster. Plea the general issue. At the trial before Lord Lyndhurst, C. B., at the last Summer assizes for Chester, it appeared that Broster, in April, 1831, executed a warrant of attorney to one Stringer, to confess judgment for 9397., as an indemnity to Stringer for the payment of such moneys, costs, &c., as Stringer might have to pay by reason of having joined Broster in certain promissory notes. Stringer, having been afterwards obliged to pay money on the notes, signed judgment on the warrant of attorney on the 6th of February, 1832, and a fi. fa. was thereupon issued, under which a sheriff's officer took possession, and began to sell. On the 15th of February, during the sale, but when it was nearly over, notice was given to the sheriff's officer on behalf of Broster's creditors, that he had committed an act of bankruptcy, and that a docket was struck against him. The act of bankruptcy had in fact been committed on the 12th. The sheriff's officer finished the sale, and afterwards paid over the balance of proceeds to Stringer, on an indemnity. This action was brought to recover the amount *of proceeds. The jury, under the direction of the learned Judge, found a verdict for the plaintiffs.

[*88

Jones, Serjt. (pursuant to leave reserved) now moved for a rule to show cause why a nonsuit should not be entered. This payment by the sheriff was protected by the statute 1 W. 4, c. 7, s. 7.(a) By the bankrupt act, 6 G. 4, c. 16, s. 108, it is provided that no creditor suing out execution on any jugdment by default, confession, or nil dicit, shall avail himself of such execution to the prejudice of other fair creditors, but he shall be paid rateably with them. The act of 1 W. 4, c. 7, s. 7, reciting this enactment, provides that no judgment or execution on a cognovit actionem, signed after declaration filed or delivered, or judgment by default, confession, or nil dicit, in any action commenced adversely, and not by collusion for the purpose of fraudulent preference, shall be deemed within the former provision. It is true this act does not expressly mention warrants of attorney; but the object is to protect all judgments not obtained by collusion, or with a view to fraudulent preference, and a judgment like this [*89 comes within the meaning of the clause. Another point taken at the trial was, that the action did not lie for the produce of goods sold before the sheriff had notice of the bankruptcy. Notley v. Buck, 8 B. & C. 160, is no authority to the contrary, for there the sheriff was informed of the bankruptcy before he sold. Here, it is true, the sheriff had had no notice when he received the purchasemoney and paid it over; but he had sold the goods, and bound himself by that contract of sale to the purchasers, before any notice: and (if the recent decision in Balme v. Hutton, 2 Tyr. 17; 2 Cro. & Jer. 19, be correct) the seizure and sale, without notice of the bankruptcy, did not render him a wrong-doer.

PARKE, J. There is very little difficulty in this case, when the clauses of the two statutes are compared. The 1 W. 4, c. 7, s. 7, only alters the provision of

(a) 1 W. 4, c. 7, s. 7, "And whereas by an act passed, &c. (6 G. 4,) intituled An Act to amend the Laws relating to Bankrupts, it is provided that no creditor, though for a valuable consideration, who shall sue out execution upon any judgment obtained by default, confession, or nil dicit, shall avail himself of such execution to the prejudice of other fair creditors, but shall be paid rateable with such creditors. And whereas, by reason of such provision, plaintiffs have been and may be deterred from accepting a cognovit actionem, with stay of execution, whereby the expense of further proceedings in such action might have been and may be saved or diminished; for remedy thereof be it enacted, that no judgment signed or execution issued after the passing of this act on a cognovit actionem signed after declaration filed or delivered, or judgment by default, confession, or nihil dicit, according to the practice of the Court, in any action commenced adversely, and not by collusion for the purpose of fraudulent preference, shall be deemed or taken to be within the said provision of the said recited act."

the 6 G. 4, c. 16, s. 108, in the cases of a judgment or execution on a cognovit after declaration, or a judgment by default, confession, or nil dicit, in an action commenced adversely, and not by collusion for the purpose of fraudulent preference. Now this was not an execution on judgment by cognovit after declaration, or judgment by default, confession, or nil dicit in any action commenced adversely, but upon a warrant of attorney. The case, therefore, is not within the statute 1 W. 4, c. 7. Then is it within section 108, of the bankrupt act? To take it out of that section, the endeavour must be to engraft upon the words there used, "any judgment obtained by default, confession, or nil *dicit;" the [*90 terms of the other act, "by collusion for the purpose of fraudulent preference;" but we cannot adopt that construction; the clause is general and applies to all cases. As to the other point, there is no occasion here to be embarrassed with the case of Balme v. Hutton :(a) because, in this instance, all the money was received and paid over by the sheriff after notice of the bankruptcy; and the action is for money had and received. I am therefore of opinion that there should be no rule.

TAUNTON, J., and PATTESON, J., concurred.

Rule refused,

JOHN CASTLEDINE and MATTHEW CASTLEDINE v. MUNDY.

Nov. 5.
(In Error.)

Error will lie to B. R. on a judgment of C. B. for error in fact.

A court of error will give judgment of reversal, if there be error in law apparent on the face of the record, though error in fact only be assigned.

THIS was a writ of error on a judgment of the Court of Common Pleas. Declaration stated that the defendants below after the making of the statute 8 Hen. 6, c. 9, on, &c., with force and arms, with a strong hand, and against the form of the statute in such case made and provided, entered a certain messuage, &c. of the plaintiff, and in a forcible manner put out, disseised, and dispossessed and expelled the plaintiff therefrom, and with a forcible manner, and with a strong hand, kept and continued the plaintiff therefrom for a long *space of time, to wit, from thence hitherto, &c., by means whereof the [*91 plaintiff lost and was deprived of the use of the said dwelling-house, to wit, at, &c. The second and third counts charged the defendants with breaking and entering the plaintiff's dwelling-house, &c., to plaintiff's damage of 500l. The defendants appeared in person, and suffered judgment by default. On inquiry before the sheriff, the jury found that the plaintiff had sustained damages on occasion of the premises, besides costs, to the amount of 1007.; and the judgment was, that the plaintiff do recover against the defendants the sum of 3007., being treble the amount of the damages found by the inquisition, and the sum of 1937. 188., being treble costs. Upon writ of error to this Court, the plaintiffs (the defendants below) assigned for error that Matthew Castledine appeared in the suit in his own proper person, although at the time of his said appearance, and also at the time of giving judgment, he was under the age of twenty-one years, to wit, of the age of seventeen years and no more, in which case the said Matthew ought to have been admitted to appear in the Court below, to defend the suit aforesaid by his guardian, and not in his own proper person; wherefore they prayed that the judgment might be revoked, annulled, and altogether held

(a) The judgment of the Court of Exchequer in this case, which was contrary to the recent decision of the Court of K. B. in Dillon v. Langley, 2 B. & Ad. 131, was reversed in the Exchequer Chamber, on error, during this term. Hutton v. Balme, 2 Tyr. 620;.

1 Cro. & M. 262.

VOL. XXIV.-4

for nothing, and that they might be restored to all things which they had lost by occasion of the judgment, &c. To this the defendant in error pleaded in nullo est erratum. The case was argued in Trinity term by

Platt for the plaintiffs in error. An infant defendant can only appear by guardian, even when he is sued as *co-executor with others, Frescobaldi v. Kinaston, 2 Str. 784, and in Tidd's Practice, 9th edit. 99, it is said, that [*92 common bail cannot be filed for him under the statute, though he be sued jointly with other defendants; and for this Bligh v. Minster, Trin. 28 G. 3, K. B., is cited. It may be said that this was a defective assignment of error in fact; but assuming that to be so, or that the matter assigned is no error, then, the defendant in error having pleaded in nullo est erratum, and that plea being in effect, a demurrer, the Court may look at the whole record, and pronounce that judg ment which, upon the whole, appears to be right: Le Bret v. Papillon, 4 East, Now here, even assuming that the infancy of one defendant below cannot be insisted on as a ground of error, still the judgment is erroneous, because general damages are assessed on all the counts, and it is therefore, impossible to say what portion is to be ascribed to the first count, on which alone the plaintiff is entitled to recover treble costs and damages.

502.

[*93

Fynes Clinton, contrà. The assignment of errors itself is bad, inasmuch as it concludes with a prayer that judgment may be reversed, whereas it ought to have concluded with a verification: King v. Gosper and Shire, Yelv. 58. And the plaintiffs in error having assigned an error in fact, viz., that Matthew Castledine was within age, and had not appeared by guardian but in his own proper person, could not afterwards also assign error in law; and, if so, they must not now be permitted to do that indirectly which they could not do directly. They cannot, in this state of the proceedings, be in a better situation than they would have *been if they had offered to verify the fact alleged, and the parties had pleaded to issue; and then they could not have assigned as error in law that general damages were assessed on all the counts. This case differs from Frescobaldi v. Kinaston, 2 Str. 784: there the assignment of error was that the defendant below had appeared by attorney. Here he appears in his own proper person. [PARKE, J. It is said in an Anonymous Case, in Sayer's Rep. 51, that an infant cannot bring a penal action, because he cannot appear in person or by attorney; and in Co. Litt. 135, b, that when an idiot doth sue or defend, he shall not appear by guardian, or prochein amy, or attorney, but he must be ever in person; but an infant or a minor shall sue by prochein amy and defend by guardian.] The fact of one of the defendants being an infant, and having appeared by guardian, is not a ground for reversing the judgment altogether. [PARKE, J In Bird v. Orms, Cro. Jac. 289, an entire judgment against two in trespass was reversed, one of them having appeared by attorney instead of by guardian. So in King v. Marlborough and Craker, Cro. Jac. 303, in ejectment, the error assigned was that Craker, one of the defendants, at the time of the judgment was within age, and appeared by attorney where it ought to have been by his guardian, the judgment being upon verdict, and it was thereupon demurred; for it was said that this was not error, but quoad him within age." But it was decided, the damages and costs being entire, that the judgment was reversable for both.] There the judgment was after verdict; here it was by default. In both cases the action was founded in tort, and it was not then settled, as it has been since *in Merryweather v. Nixan, 8 T. R. 186, that there is no contribution between tort-feasors. [Lord TENTER[*94 DEN, C. J. Will a writ of error for a matter in fact lie in this Court on a judgement of C. B? In Com. Dig. Pleader, 3 B. 1, it is said that error may be brought in the same Court where the judgment was given, for error in fact, as that the defendant appeared by attorney, being an infant; and then it is added, for error in fact it must be in the same Court, and 1 Sid. 208, is cited.] Platt in reply. In Frescobaldi v. Kinaston, Str. 784, and Bird v. Orms,

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