ROBERT HINDE, Demandant, JOHN HINDE, Tenant, RICHARD BLAND, Vouchee. 1820. April 26. ONSLOW Serjt. moved to pass a recovery under the The Court alfollowing circumstances. lowed a re covery to pass, where the certificate of the notary (that the party who made the affidavit of the caption and warrant of attorney was sworn in his presence be fore the de puty fiscal at Cape Town,) omitted the day and month in the body of the certificate, The warrant of attorney was taken and acknowledged at Cape Town, Cape of Good Hope, before two commissioners. The usual affidavit of caption and acknowledgment was sworn before the deputy fiscal at Cape Town, by G. C., one of the commissioners, on the 31st of July, 1819; endorsed on the affidavit was a certificate of a acknowledg notary public dwelling in Cape Town, that the commis- ment of the sioner who had made the affidavit of the caption and acknowledgment, was sworn in his (the notary's) presence to the truth of the same affidavit, before P. B. B., on the day of 1819; and he further certified, that the said P. B. B. was deputy fiscal, and as such, usually administered oaths, and had power to administer such oath, and that the name subscribed to the said affidavit, and also the name of P. B. B. subscribed to the jurat, were of their respective hands-writing. To the end of this certificate, the notary public making it had put the date of the 31st of July 1819, his name and description, and also, as was supposed, (for the wax was gone,) his notarial seal. The only question was, whether the recovery should pass, there being a blank in the body of the certificate for the day and month when G. C. was sworn to the truth of the affidavit of caption and acknowledgment. The learned Serjeant prayed that the re- certificate. covery might be allowed to pass, notwithstanding this blank; and urged, that the date of the certificate (31st July,) being the same as that of the jurat of the affidavit of caption, there was sufficient evidence that the certifi but stated it correctly at the end, where the notary witness ed the instrument; the date of the jurat of the affidavit being the same as that at the bottom of the 1820. DINSDALE บ. EAMES. tardy bond, it would have been necessary to assign breaches, whereas in the present case the amount of the original debt was known and ascertained. Under the 5 Geo. 2. c. 30. the Defendant was entitled to be discharged from all debts due and owing at the time of the bankruptcy: if he could be discharged from the original debt, why not also from this substituted debt? DALLAS C. J. The debt was contracted with certainty before the bankruptcy of the Defendant, and therefore might have been proved under the commission. The case of Bouteflour v. Coats is directly in point, and has never been overruled or questioned in any subsequent decision; and Scott v. Ambrose has decided that the costs bear relation to the original debt. The rule must be made absolute. BURROUGH J. The case Ex parte Charles has no application to the present. If this had been an action of trover, the case might have been different, but the debt, for which the defendant was sued, is one which is clearly barred by his certificate. RICHARDSON J. The substance of the action on the bail-bond is the same as that on the original debt; the costs are accessorial, and the hardship upon the Plaintiff is not greater than in many other cases which arise unavoidably under the bankrupt laws. Rule absolute. 1820. BRANDON and BROWN v. HUBBARD and KEYS. May 2. A replevin clerk, who is partner in an the firm. ASSUMPSIT against the Defendants for work and labour done for them by the Plaintiffs. It appeared on trial at the last Stafford assizes, before attorney's Holroyd J. that the Plaintiffs (attornies) were partners, firm, must sue that Brandon had been appointed, solely, replevin clerk alone for the expenses of to the sheriff, but that the business of the replevin preparing a clerk was transacted in the office of Brandon and Brown. replevin bond, though it be A replevin bond (for the costs of preparing which, prepared at among other things, the present action was brought) the office of was filled up, the stamp provided, and other business relating to the same, done for the Defendants, in the office of Brandon and Brown. The counsel for the Defendants objected that there was a misjoinder; for that Brandon alone being the replevin clerk, was alone interested in this suit. Holroyd J. thought the objection well founded, and nonsuited the Plaintiffs; but gave leave to move to enter a verdict for them for the amount of the costs of preparing the replevin bond, &c. Accordingly, Peake Serjt. now moved to set aside this nonsuit, and enter a verdict for the Plaintiffs. He contended that the statutes 1 and 2 Ph. & Mar. c. 12. s. 3. and 11 Geo. 2. c. 19. s. 23. (the only statutes relating to replevin clerks) contained no directions about the remuneration to the sheriff, or as to the person who should prepare the replevin bond. If, therefore, the bond was prepared by two partners, the expenses were as much the debt of one as of the other, though one only held the appointment of replevin clerk. If an action had been brought for any matter relating to the stamp, both would have been liable. He cited Willett v. Chambers (a), as the only case bearing on the subject. Sed 1820. BRANDON บ. HUBBARD. Sed per Curiam. There is no doubt in the case. It was the duty of Brandon alone to make out the replevin bond, and Brown had nothing to do with it. The Defendants dealt with Brandon in his capacity of replevin clerk, and not as the partner of Brown. Peake took nothing by his motion. May 4. 1. By a settlement made on the marriage of Sir H. J. P. HALFORD v. DILLON. (a) DALLAS C. J. THIS was an action of replevin, brought by the Plaintiff for taking and detaining his goods. The Defendant avowed in the common form for certain rent the use of Sir of the locus in quo and other premises, which he alleged the estate T. was settled to H. J. P. for Sir life, remainder to his first and other sons in tail male, reversion to Sir H. J. P. the settlor, in fee. There was issue of the marriage a son, J. P., who attained the age of twenty-one, but died in 1767 without issue, leaving Sir H. J. P., his father, him surviving. J. P. took upon himself, among other things, to devise the estate T. to his father for life, with remainder to his sisters of the half-blood, M. and A. in fee. H. J. P. accepted certain benefits under this will; and in 1769 devised the estate T. (after the deaths of his daughters M. and A. without issue male) to H. P. for life, with several remainders over. In an action of replevin, by a person claiming under the will of Sir H. J. P., the avowant, who claimed as heir of A., read in evidence the answer of the real Plaintiff to a bill filed against him by the avowant, in which answer the real Plaintiff admitted that he believed that certain articles of agreement between Sir H. J. P. and his son J. P. were made in the year 1766, whereby J. P. agreed to pay 700l. and an annuity of 200l. per annum to his father, who, in consideration thereof, agreed to convey estate T. immediately to his son, subject to a proviso, that if the son should die in the lifetime of the father, the conveyance was to be wholly void: Held, that Sir H. J. P. was not, by accepting benefits under the will of J. P., divested of the reversion in estate T.; that M. and A. took nothing in the estate under the will of J. P.; and that, on the trial, it was not necessary for the Judge to direct the jury to presume, that some conveyance of the reversion in fee had been made by Sir H. J. P. to his son J. P. 2. The letters of a party, under whom the Plaintiff did not claim, were held inadmissible as evidence to affect the Plaintiff's title. (a) The facts and argument in this case are so sufficiently stated in the judgment of the Court, that it was deemed unnecessary to re port them at greater length. Lens Serjt. shewed cause against the rule, which was obtained and supported by the Defendant in person. to to have been holden by the Plaintiff as tenant to the Defendant. The Plaintiff, by his plea in bar, denied the holding modo et formâ ; whereupon issue was joined, and at the trial (a) a verdict was found for the Plaintiff. The Defendant has moved for a new trial. The Plaintiff's farm was demised to him in 1805, by Ann Parker, by lease to hold from the 29th of September, 1805, for fourteen years. Ann Parker died in January, 1814, and the Defendant was her heir at law. The real Plaintiff in the action was Sir William Parker, Bart., to whom the Plaintiff Halford had attorned and paid his rent; and the question was, whether Ann Parker was tenant in fee of the premises under the will of her brother of the half blood, John Parker, Esquire, as the Defendant contended; or tenant for life only, under the will of her father, Sir Henry John Parker, Bart., as was contended on the part of the Plaintiff. By indentures of lease and release, bearing date the 1st and 2d of October, 1741, and made on the marriage of Sir Henry John Parker, the father, with Catherine Page, the Talton estate (whereof the premises in question formed a part) was settled to the use of Sir Henry John Parker for life, with remainder to his first and other sons in tail male, with reversion to the settlor in fee. There was issue of this marriage one son, John Parker, who attained the age of twenty-one, but died in 1767 without issue, leaving his father, Sir Henry John. Parker him surviving. Sir Henry John Parker, therefore, (unless he had done some act to deprive himself of the reversion in fee retained to him by the settlement of 1741), having survived his only son, had power to dispose by his will of the reversion in fee; and he, by his will, bearing date the 10th day of November 1769, devised the Talton estate, after the deaths of his daughters (a) Before Richardson J. Worcester summer assizes 1819. Margaret 1820. HALFORD V. DILLON. |