1799. Ex Parte HUBBARD, May 6th. 8 Term Rep. 364. S.P. Ante, 302. The Court will not order a common appearance to be entered on the ground of the Plaintiff having proved his debt cafe where the debt after that period was elapfed, had been reduced to the ftipulated fum. He cited in fupport of this the words, "if any perfon fhall be charged in execution for any fum of money not exceeding in the whole the fum of 100l. or on which execution there fhall at any time remain due a fum not amounting to above the faid fum of rool.," &c. EYRE Ch. J. The material words of the act are "before "the end of the first term which fhall be next after fuch pri"foner fhall be charged in execution of his creditor;" now this is not within the firft 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 fum limited. Indeed the Court will not be very anxious to eftablish a precedent which will enable prifoners to deal with their creditors, and thus manage to prefer fome of them by paying their debts, and come in under the Lords' act againft all the reft. I had almoft convinced myself that the application was reasonable, and that we should be justified in ordering the prifoner to be brought up; but upon examining the act, it appears that the cafe is not within the words, and confidering the inconvenience that may refult from extending it's provifions in the way required, it feems more advifeable to adhere to a strict conftruction. ROOKE J. I am of the fame opinion. THE HILL V. REEVES. "HE Plaintiff having proved his debt under a commiffion of bankruptcy iffued against the Defendant, and having been chofen one of the affignees, arrefted the Defendant and held him to bail. Le Blanc Serjt, now fhewed cause against a rule nifi oband been chofen affignee under a tained on a former day for cancelling the bail-bond and encommiffion of tering a common appearance, and contended that this applicabankruptcyiffued against the De- tion could not be attended to, fince a party has a right to fue his creditor even after he has received a dividend under the commiffion. fendart Shepherd Serjt. in fupport of the rule obferved that this was not a motion to stay proceedings in the action, but merely to can cel cel the bail-bond, on the ground of the hardship which the Defendant fuftained in being held to bail by the Plaintiff, who as affignee had poffeffed himself of all his property. He urged that the Plaintiff had elected his remedy, having completely adopted the commiffion by becoming affignee and acting under it. (a) The Court refused to interfere, faying that the Defendant must apply to the Court of Chancery. (a) Vid. Aylett v. Harford and Richards bail of Lowe, 2 Bl. 1317. where an execution was fet afide on the ground of the Plaintiff having adopted the commiffion by acquiefcing under it for a year and acting as affignee. (b) Vid. ex parte Ward, 1 Atk. 153. where it was faid that barely being affignee without proving a debt under the commif Rule difcharged. (b) fion did not amount to an election: Ex 1799. HILL V. REEVES. 1 WATT and Another v. DANIEL. BY The A rule nifi having been obtained on a former day for changing the venue from London to Cornwall, on an affidavit that the Defendant muft incur great expence in bringing up witneffes from Cornwall, if the caufe were tried in London, and that feveral perfons employed in fuperintending the mines would be compelled to leave them, at a great inconvenience to the Defendant; Palmer Serjt, now fhewed caufe, 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 refpecting the cause in confequence of calumnies which had been circulated concerning the Plaintiffs, and that a fubfcription had been entered into to defray the expences of refifting the Plaintiff's demand. He obferved May 6th. venue in an ac The Court will not change the tion on a deed where it was executed on the ground of the defendant's witeffes refiding to the county there, if from the pleadings it does nor appear neceffary to produce many witnelles from that county, unless a queftion be raised of which a fair trial cannot be expected there. 1799. WATT V. DANIEL ferved that from the nature of the cafe the queftion to be tried muft excite a strong intereft in the public mind in Cornwall, where fo many perfons were under the fame circumstances as the Defendant; and referred to the cafes cited in the note to Fofter v. Taylor, 1 Term Rep. 781. He then adverted to the Defendant's pleas (a), which were 1ft, Non eft factum. 2d, Riens per difcent. 3d, That Defendant had ceafed from a certain time to use the engines, and that he had paid 11,041/. for the time during which he had used them. 4th, nearly the fame as the 3d. 5th, riens in arrere; and faid, that with respect to the firft plea, one of the two witneffes 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 fimilar application had been refused in the cafe of Boulton v. Bull. Le Blanc Serjt. in fupport of the rule, relied on the affidavit which ftated the Defendant's witneffes to refide in Cornwall, and contended that the plea fhewed 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 cafe being admitted by the deed; and that as proof must be given of the times during which the engines were worked, and when they ceafed working, it would be neceffary to bring up a number of witneffes who had been employed about them. EYRE Ch. J. There is no doubt that in a proper cafe the Court will order the venue to be changed notwithstanding the Plaintiff's right to lay it in any county. The queftion then is, whether this be a proper cafe? The firft plea is non eft factum. Now where other pleas are pleaded, which fhew 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 refpect to riens per difcent, that does not require many witneffes, 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 ufe, and whether any ufe has been made of them fince the time alleged, two witneffes will be fufficient to prove that, (a) This he did from a notice of an application to plead thofe feveral matters and which came on afterwards. without without calling all the county of Cornwall. The nature of the cafe therefore excludes the neceffity of incurring great expence or inconvenience by drawing away from the mines perfons whose prefence may be material. But behind this narrow view of the fubject I can fee a cafe which may make it neceffary for many witneffes from the county of Cornwall to attend. I can hardly fuppofe that from the year 1793, the mines have been worked without any engines. Probably it will turn out that the Defendants mean to contend that the engines in question have not been ufed 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 railed; upon which many perfons refiding in Cornwall would be neceffary witneffes. But when that very queftion was before the Court we were of opinion that the county was too much inte refted for fuch 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 interference of the Court, and the other fenfe renders it improper for the Court to accede to the application. ROOKE J. of the fame opinion. Rule discharged. Palmer then fhewed cause against the rule for pleading the above feveral matters, But the Court refused to interfere, and accordingly That rule was made absolute. 1799. WATT V. DANIEL THIS LISTER One &c. v. MUNDEll. May 6th. 'HIS was an application to have a writ of fieri facias fet afide, If a fi. fa. iffued and the goods and money levied under it reftored to the againit a bankDefendant, on the ground of his having become a bankrupt fub- tificate obtained, sequent to the time when the cause of action accrued, and hav- be not executed rupt before cer till after, the Court will order the goods to be reftored; even though he has not pleaded the certificates according to 5 G. 2. c. 30. S. 7. For the Court will always give that relief in a fummary way which might be obtained by auditâ querelâ. 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 witnefles on which a verdict has proceeded be founded on and derive it's credit from particular circumftances, and thofe circumftances be afterwards clearly falfified by affidavit, the Court will grant a new trial. 1799. LISTER で。 MUNDELL. ing obtained his certificate between the day on which the writ of fieri facias iffued 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 commiffion iffued against him: The Plaintiff having declared in affumpfit, and the Defendant having pleaded the general iffue, the caufe was tried at the fummer affizes for York 1798, and a verdict found for the Plaintiff: on the 13th November in the fame 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 fheriff levied under the fieri facias in Yorkshire. Le Blanc Serjt. in the laft 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 authorifes the Court to discharge the perfon of the bankrupt imprisoned after the certificate obtained. (a) EYRE Ch. J. By refufing this application we shall drive the Defendant to his auditâ querelá, and I take it to be the modern practice to interpofe in a fummary way in all cafes where the party would be entitled to relief on an auditâ querelâ. (b) Le Blanc then ftated that the Defendant had loft more than 57. on one day by horfe-racing, and was therefore deprived of the benefit of the act by S. 12., and also that he had frequently promifed payment of the debt fince the certificate obtained. EYRE Ch. J. Certainly if we entertain a fummary jurisdiction in order to relieve a party from the neceffity of having recourse to an auditâ querela, we must look into the circumftances of the cafe, and fee whether there be any thing to prevent the auditá querela from taking effect. However, as the facts now produced are collateral to the original motion, the party ought to have an opportunity of anfwering them by affidavit. (a) Afbdowne v. Fiber, Barnes 206. ed. 3. Cellan v. Meyrick, 1 T. R. 361. (3) Vid. 3 Bl. Comm. 406. Anon. 1 Salk. 93. Wicket v. Cremer, 1 Lord Raym 4391 Salk. 264. S. C. Cont. Calcraft v. Swann, Barnes 204. ed. 3. Le |