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1799

Ex Parte HUBBARD.

case where the debt after that period was elapsed, had been reduced to the stipulated fum. He cited in support of this the words, “if any person shall be charged in execution for any sum of money not exceeding in the whole the sum of 100l. or on which execution there shall at any time remain due a fum not amounting to above the said fum of rool.,” &c.

EYRE Ch. J. The material words of the act are before 6 the end of the first term which shall be next after such pri“ foner shall be charged in execution of his creditor;” now this is not within the first term after this prisoner has been charged in execution, though it is the next term after that in which his debt has been reduced below the sum limited. Indeed the Court will not be very anxious to establish a precedent which will enable prisoners to deal with their creditors, and thus manage to prefer some of them by paying their debts, and come in under the Lords' act against all the reft. I had almost convinced myself that the application was reasonable, and that we should be justified in ordering the prisoner to be brought up; but upon examining the act, it appears that the case is not within the words, and considering the inconvenience that may result from extending it's provisions in the way required, it seems more adviseable to adhere to a strict construction.

ROOKE J. I am of the same opinion.
Clayton took nothing by his motion.

to bail.

May 6th.
8 Term Rep. 364.
S.P.
Ante, 302

HILL v. REEVES.
3 Bof. & Pull. 6.
The Court will
not order a com-

*HE Plaintiff having proved his debt under a commission of

THE mon appearance

bankruptcy issued against the Defendant, and having been to be entered on chosen one of the assignees, arrested the Defendant and held him the ground of the Plaintiff having proved his debt Le Blanc Serjt. now shewed cause, against a rule nisi oband been chosen assignee under a tained on a former day for cancelling the bail-bond and encommission of

tering a common appearance, and contended that this applicaagain ft the De- tion could not be attended to, fince a party has a right to fue fendant

his creditor even after he has received a dividend under the commission.

Shepherd Serjt. in support of the rule observed that this was not a motion to stay proceedings in the action, but merely to can

cel

1799.

HL

REEVES.

cel the bail-bond, on the ground of the hardship which the De fendant fuftained in being held to bail by the Plaintiff, who as allignee had possessed himself of all his property. He urged that the Plaintiff had elected his remedy, having completely adopted the commission by becoming assignee and acting under it. (a)

The Court refused to interfere, saying that the Defendant must apply to the Court of Chancery.

Rule discharged. (0) (a) Vid. Aylett v. Harford and Richards fion did not amount to an election: Ex bail of Love, 2 Bl. 1317. where an execuie parte Dorvilliers, 1 Atk. 221. where the tion was set aside on the ground of the same was held with respect to a party who Plaintiff having adopted the commission by had chosen himself aflignee. And ex parte acquiescing under it for a year and acting Capot, i Ath. 219. where the Plaintiff as allignee.

being an assignee was permitted to proceed (6) Vid. ex parte Ward, i Atk. 153. at law, on refunding what he had received where it was said that barely being allignee as dividends under the conmillion. Alio without proving a debt under the commis. Oliver and Another v. Ames, 8 T.R. 364.

1

Watt and Another v. DANIEL.

May 6th.

nelles from that

By indenture of the 21ft of November 1780, executed in the The Court witi county of Cornwall, an agreement was entered into between not chance the

venue in an acthe Plaintiffs (the patentees of the new-invented fteam-engine) tion on a deed and the Defendant's father (who was concerned in certain Cornish

to the county

where it was exmines) that the latter should erect five steam-engines in Corn- ecuted on the wall at his own expence, and pay the Plaintiffs a certain sum of ground of the money monthly during the time he should work them. These nelles residing monthly fums were regularly paid up to the year 1793. The there; if from the present action of covenant was brought to recover the arrears not appear ne. from that time, amounting to between eight and nine thousand cerary to pro

duce many witpounds.

A rule nif having been obtained on a former day for changing county, unless a the venue from London to Cornwall, on an affidavit that the De- of which a fair fendant must incur great expence in bringing up witnesses from trial cannot be

expected there. Cornwall, if the cause were tried in London, and that several persons employed in superintending the mines would be compelled to leave them, at a great inconvenience to the Defendant;

Palmer Serjt. now shewed cause, and relied on an affidavit ftating that the Plaintiffs had reason to believe that a fair and impartial trial could not be had in the county of Cornwall, for that great prejudice had arisen there respecting the cause in confequence of calumnies which had been circulated concerning the Plaintiffs, and that a subscription had been entered into to defray the expences of resisting the Plaintiff's demand. He ob

served

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served that from the nature of the case the question to be tried muft excite a strong interest in the public mind in Cornwall, where so many persons were under the same circumstances as the Defendant; and referred to the cases cited in the note to Foster v. Taylor, i Term Rep. 781. He then adverted to the Defendant's pleas (a), which were ift, Non eft factum. 2d, Riens per discent. 3d, That Defendant had ceased from a certain time to use the engines, and that he had paid 11,0411. for the time during which he had used them. 4th, nearly the fame as the 3d. 5th, riens in arrere ; and said, that with respect to the first plea, one of the two witnesses to the deed was the Defendant in the action: that the only fact to be proved under the third and fourth pleas, was the time during which the engines were worked, which might be done by any of the workmen who attended them; and that the affirmative of all the other pleas lay on the plaintiffs. He added that a similar application had been refused in the case of Boulton v. Bull.

Le Blanc Serjt. in support of the rule, relied on the affidavit which ftated the Defendant's witnesses to reside in Cornwall, and contended that the plea shewed that all the evidence must come from that county. He infifted that nothing was to be apprehended from the prejudices of the county, as the question on the patent was now out of the case being admitted by the deed; and that as proof must be given of the times during which the engines were worked, and when they ceased working, it would be necessary to bring up a number of witnesses who had been employed about them.

Eyre Ch. J. There is no doubt that in a proper case the Court will order the venue to be changed notwithstanding the Plaintiff's right to lay it in any county. The question then is, whether this be a proper case? The first plea is non est factum. Now where other pleas are pleaded, which shew that the deed has been acted under, I cannot think it right for the Court to give any indulgence on the ground of that plea. With respect to rions per discent, that does not require many witnesses, nor that they should refide in the county of Cornwall. If the third and fourth pleas are to be understood as going fingly to the point how long the engines have been in use, and whether any use has been made of them fince the time alleged, two witnesses will be sufficient to prove that,

.

(a) This he did from a notice of an application to plead those several matters and which came op afterwards.

without

1799.

WATT

DANIEL,

without calling all the county of Cornwall. The nature of the
cafe therefore excludes the necessity of incurring great expence
or inconvenience by drawing away from the mines persons whose
prefence may be material. But behind this narrow view of the
subject I can see a case which may make it neceflary for many
witnesses from the county of Cornwall to attend. I can hardly
suppose that from the year 1793 , the mines have been worked
without any engines. Probably it will turn out that the Defend-
ants mean to contend that the engines in question have not been
used because others different in principle have been substituted
for them. This would bring on the question with respect to the
infringement of the patent, and all the points formerly raited;
upon which many persons residing in Cornwall would be necef-
sary witnesses. But when that very question was before the
Court we were of opinion that the county was too much intex
rested for such a question to be tried there. The only ground
therefore on which the Court can allow this application in point
of convenience is the very ground which has been decided upon
as that on which the cause ought not to be tried in Cornwall.
The narrow fenfe of the pleadings does not call for the inter-
ference of the Court, and the other sense renders it improper
for the Court to accede to the application.
ROOKE J. of the same opinion.

Rule discharged.
Palmer then shewed cause against the rule for pleading the
above several matters,
But the Court refused to interfere, and accordingly

That rule was made absolute.

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LISTER one &c. v. MUNDELL.

May 6th. . THIS his was an application to have a writ of fieri facias set aside, If a fi

. fa. issued and the goods and money levied under it restored to the againit a bank

rupt before cerDefendant, on the ground of his having become a bankrupt fub- titicate obtained, sequent to the time when the cause of action accrued, and hav- be not executed

till after, the

Court will order the goods to be restored; even though he has not pleaded the certificates according to 5 G. 2. c. 30. 8.7. For the Court will always give that relief in a summary way which might be ohtained by audita querela. But if any thing be alleged to invalidate the effect of the certificate, the Court will direct a trial on a plea of bankruptcy. If the teftimony of witnefies on which a verdict has proceeded be founded on and derive it's credit from particular circumftances, and those circumstances be afterwards clearly falsified by affidavit, the Court will grant a new trial.

1799.

LISTER

MUNDELLE

ing obtained his certificate between the day on which the writ of fieri facias issued and the day on which it was executed.

The debt accrued to the Plaintiff for business done as an attorney in March 1793: In November following the Defendant became a bankrupt and a commillion iffued against him: The Plaintiff having declared in asumpfit, and the Defendant having pleaded the general issue, the cause was tried at the summer affizes for York 1798, and a verdict found for the Plaintiff: on the 13th November in the same year final judgment was figned, and the fieri facias fued out: on the 14th the Defendant's certificate was allowed: and on the 23d of the fame month the sheriff levied under the fieri facias in Yorkshire.

Le Blanc Serjt. in the last term opposed the application, as neither warranted by the 5 Geo. 2. c. 30. f. 7, which enables bankrupts to plead their certificate, and discharges them from all debts due before the bankruptcy, the Defendant in this case not having pleaded his certificate but only the general iffue ; nor by f. 13, which only authorises the Court to discharge the person of the bankrupt imprisoned after the certificate obtained. (a)

Eyre Ch. J. By refusing this application we shall drive the Defendant to his auditâ querelâ, and I take it to be the modern practice to interpose in a summary way in all cases where the party would be entitled to relief on an auditâ querelá. (6)

Le Blanc then stated that the Defendant had lost more than 51. on one day by horse-racing, and was therefore deprived of the benefit of the act by f. 12., and also that he had frequently promised payment of the debt since the certificate obtained.

Eyre Ch. J. Certainly if we entertain a summary jurisdiction in order to relieve a party from the necessity of having recourse to an auditâ querelâ, we must look into the circumstances of the case, and see whether there be any thing to prevent the auditá querelâ from taking effect. However, as the facts now produced are collateral to the original motion, the party ought to have an opportunity of answering them by affidavit.

(a) Asedovne v. Fiser, Barnes 206. ed. 3. 93. Wicket v. Cremer, I Lord Raym 439. Cellan v. Meyrick, i T.R. 361.

i Sulk. 264. S. C. Cons. Calcraft v. Swara, (5) Vid. 3 Bl. Coms?. 406. Anon. I Salk. Purnes 20+. ed. 3.

Le

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