months; for the defendant was only to have a right to enter on default of payment. It could not be that the parties intended that entry and possession should be had at once, for Petty, the insolvent, was then in his trade of a hair-dresser which would be put an end to at once by such a proceeding. It will be observed that power is given to the defendant "to take and hold possession of all household goods, shop-fixtures, stock in trade," &c. | The mention of the last words is material, as showing that the parties contemplated future-acquired goods, because "stock in trade" consists of goods continually coming in and going off the premises. On close examination it will be seen that the judgment in the case of Tapfield v. Gilman, cited for the plaintiff, is in the defendant's favour: (Lunn v. Thornton, 1 C. B. 379.) It has never yet been decided that a power may not be given to take after-acquired property. With these considerations before the court, it is submitted the verdict | should be entered for the defendant.

JERVIS, C. J.-The court is not called upon in this case to determine whether a debt of this kind may be charged upon future-acquired property; nor is it necessary to say whether a party may or may not give a power to be acted upon in future to seize all his property. This is simply a question of the construction of this paper, and, so regarding it, I am of opinion that it amounts to an agreement or authority to take such household goods, stock-in-trade, and effects only as were on the premises at the day when the parties entered into the agreement. It is apparent, upon reading the document, that such is the meaning of it, for the goods are to be taken as security for the repayment of the principle money advanced, with the arrears of interest that may become due. They are to be taken as a present security in the event of future nonpayment. There is a present intention to take, and a future contemplation of selling; and if so, and the agreement was intended to operate immediately, it must have been upon goods upon the premises at the date of the agreement. I think, therefore, that the plaintiff is entitled to recover the value of the property acquired afterwards, and that a verdict must be entered for him for that amount.

MAULE, J.-I think this agreement was meant to apply to the property in existence at the time it was made, and that it does not purport to comprehend any future property. This is the ordinary construction of instruments of this kind, and the language of this instrument has nothing out of the common, which I think would be required to do a thing so much out of the common as to deal, by a document of this kind, with after-acquired property. Some little difficulty in executing the agreement will arise from this construction, so far as the stock-in-trade is concerned; but that may well be consistent with the construction we put upon it, because it is not necessary to the construction being the true construction that it should enable the parties entering into the agreement to act upon it at all times with reference to all the subjects with which it may be acted upon, and yet to be quite perfect with respect to everything which may fall within the terms of it. I mean this: there is no doubt upon this document that the creditor might have immediately taken all the fixtures, stock-in-trade, and other effects, and have sold them (the six months having elapsed) upon default being made. In that event, with respect to all the subjectmatter of the agreement, he would have been able to execute it completely without any inconvenience or difficulty; whereas, if, instead of doing that, he allowed the trade to be carried on for some time, and afterwards seized, he might be placed in a good deal of difficulty, if it should be held that property on the premises falling within the description in the instrument was the only property granted. There might be a practical difficulty as to the amount of the stock-in-trade at the time the

instrument was made. If there were stock-in-trade to a large amount, the difficulty might be avoided by at once taking possession; but if the creditor did not do that, then the sort of difficulty mentioned would arise; but it might be that the stock-in-trade was of so trifling a nature that it was not worth his while to trouble himself about it, and from the nature of the trade I think myself at liberty to conjecture that it was so in this case. The substance of the security, therefore, was probably the furniture, the fixtures, and the things specifically mentioned in the selling power, the stock-in-trade being only one of those which were there included in the et cetera. If this be so, it removes the difficulty, or shows that it does not exist as to what would otherwise be the plain, simple, and ordinary construction of this instrument, viz., that the property on the premises mentioned in the document meant the property on the premises at the time the agreement was entered into. I think, therefore, this instrument did not pass the after-acquired property, and that the plaintiff is entitled to the proceeds of that property.

CRESSWELL, J.-I am of the same opinion, but I by no means mean to be bound to the opinion that if this instrument had been differently constructed, and if we had thought that it was the intention of the parties to include property acquired afterwards, that it would have been valid against the assignees of the insolvent. That is an important question, and if it were discussed it may be that we should hold such an instrument would be within the operation of the clause in the Insolvent Debtors' Act which makes void, as against the assignees, properly transferred within a certain time. Neither do I mean to express an opinion whether an instrument of this sort might not be constructed so as to pass future acquired property; I only say that I think this instrument contemplates a present seizure and a subsequent sale on failure to pay. This appears from the language used. It is first, to "take and hold possession of," an expression applicable only to holding for some time. It is not to "take and sell" as continuous acts, but an interval is assumed in which possession is holden, though no time is fixed, and then the authority is to sell "in the event of my failing to pay." I think, therefore, the plaintiff is entitled to the sum he here seeks.

WILLIAMS, J.-I am of the same opinion, and, with the same reservations as my brother Cresswell, I think we ought not to extend this instrument to property acquired by the insolvent after the date of it.

Verdict entered for the plaintiff for 231. 38. 5d.

The plaintiff recovered a less sum than 201. in an action ex contractu in one of the Superior Courts, and applied to a judge at chambers under the 13th section of the above act, who made an order for costs on the statement of the attorney's clerk, unsupported by affidavit. On an application to the court for a rule to rescind suck order, it not appearing by the affidavits that any objec tion was made to the judge at chambers entertaining the case, the court refused the rule.

Macnamara moved for a rule, calling on plaintiff to show cause why an order made by Platt, B. should not be rescinded, and why the sum of 57. 18s. 8d. paid under protest, should not be returned to the defendant. The order was made on the 2nd of last January for the plaintiff to have costs under the County Court Extension Act, 13 & 14 Vict. c. 61.

were for tolls certiorari does not lie. Prohibition, in such a case, would be the proper course. (He was then stopped by the court.)

POLLOCK, C. B. I think the rule in this case should be made absolute, and I do so on one of the grounds only upon which it was obtained, and it is this:-It was necessary to state to the judge who and what the parties were-in what state the case was-what had been done to it-and, in fact, full particulars should have been given of all the facts and circumstances relating to it, in order that he might be enabled to exercise that discretion as to payment of costs and otherwise as the Legislature contemplated and is provided for by the 90th section of the County Court Act. That, it appears, was not done here, and upon that ground I think this rule ought to be absolute,

PARKE, B.-I am of the same opinion. I have not the least doubt upon the point whether the certiorari is taken away by the 16th section of the County Court Extension Act, and I am clearly of opinion that it is not, although it becomes unnecessary to decide that here. That act, by the 2nd section, provides that such act and the previous County Court Acts, shall be read and construed as one act, and as if the several provisions in the said recited acts contained, not inconsistent with the provisions of this act, were repeated and re-enacted in it, and section 16 enacts that no certiorari is to be allowed except in the manner and according to the provisions thereinbefore mentioned. The only question then is, whether there is anything in the Extension Act (the 13 & 14 Vict. c. 61) not inconsistent with the provisions of the other County Court Act (the 9 & 10 Vict. c. 95), under which a certiorari may be issued in accordance with the 90th section. Clearly there is not, except it may be said there is a power of appeal given: but a power of appeal is not inconsistent with a power or right also to have a certiorari. On the application for the certiorari, the party applying should certainly communicate all the circumstances attending the case to the judge, because, upon such information it is he who is to exercise the discretion given him by the act as to security for costs, or imposing such other terms as he may think fit; and here it appears material facts were not communicated to the judge, and he may or not have exercised his discretion, but how could he do so unless all the facts were brought before him? The question as to the toll does not arise: this is an alleged overcharge for carriage of goods, and upon this inquiry the subject of the tolls referred to in the private act does not come in question. The rule must be made absolute.

ALDERSON, B.-I am of the same opinion. MARTIN, B.-I am also of the same opinion; and if the same point arises here as occurred in the case of Parker v. The Great Western Railway Company, it pears to me to be a very proper question for a Court of Error.

Rule absolute.

ap

Hodges, on Monday, the 20th of January inst., obtained a rule to show cause why the record of the judgment, obtained by the above-named plaintiff against the above-named defendant, in the County Court of Norfolk, should not be removed into this court, or why, if necessary, a certiorari should not issue for that pur pose, it appeared, by an affidavit produced, that a plaint had been entered on the 13th of November, in the County Court referred to, for 491. 7s. 6d. requiring defendant to appear on the 9th of January, when an order was made for payment of the amount, and 91. 4s. 2d. costs; there was also, on the same day, an inquiry before the judge, as to an alleged improper disposal by the defendant of his goods to his father, the judge found he had so fraudulently transferred his goods, and thereupon committed him for forty days. The affidavit then went on to state, that the judge was a barrister of not less than seven years' standing; that the defendant had now no goods in the jurisdiction, and unless he could be charged in execution by a writ of ca. sa. issuing, the plaintiff would be deprived of all remedy. The object of the present application was to remove the County Court judgment into this court, for the purpose of suing out execution from this court upon it, pursuant to the 1 & 2 Vict. c. 110, s. 22, which provides for the removal of judg ments, rules, and orders of Inferior Courts, where the judge is a barrister of seven years' standing. (See 2 Archbold's Practice, by Chitty, 8th edit. p. 1159.) No cause being shown against the rule, it was made absolute. Rule absolute.

NOTE.-Quare, Whether the 22nd section of the 1 & 2 Vict. c. 110, applies to the present constituted County Courts? That section says, that in all cases where final judgment shall be obtained in any action or suit in any Inferior Court of Record, in which, at the time of passing of this act (August 16, 1838), a barrister of Courts Act (9 & 10 Vict. c. 95) passed August 28, 1846. not less than seven years standing shall act as judge. The County

BAIL COURT.

(Before Mr. Justice ERLE.)

February 12, 1851.

BROOKMAN v. WENHAM. County Court-Certiorari-Contempt. The certiorari is not taken away by the 13 & 14 Vict. c. 61, It is sufficient to serve the writ of certiorari at the ofice s. 16 (County Courts Extension Act.) of the chief clerk.

In this case a certiorari had been issued to a County

Court judge to return a plaint and all the proceedings into this court. The judge having neglected to do so, Pearson moved for an attachment, against which cause having been shown, his lordship now pronounced the following

JUDGMENT.

ERLE, J.-In this case the first question was, whether the certiorari was taken away in respect of causes in the County Court for more than 207. and less than 501. I am of opinion that it is not. The 9 & 10 Vict. provides for it in some cases, and the 13 & 14 Vict. incorporating of issuing a certiorari as it stood in the 9 & 10 Vict. the former act, must be construed to have left the power The writ was therefore valid: (see Parker v. The Great Western Railway Company, Hil. T. 1851.) It was then said that the summons was left before the return-day at the clerk's office with the person in attendance on the part of the chief clerk; and as, in practice, writs for Quarter Sessions are served on the clerk of the peace, and writs for the Old Bailey on the clerk of arraigns, think it better to hold a service at the office of the chief clerk is sufficient for a personal service on the judge. Thirdly, as the writ did not reach the judge till after the

I

return-day, and he states he did not have it before, there is no actual contempt, and the proper course was to have ruled the judge to have returned the writ before proceeding with the attachment. My doubt has been whether the rule ought not to be discharged with costs, as no such rule was issued; but as no such rule is necessary where a certiorari has been personally served, as in this instance, and the writ was actually served before the return-day at the office, and it not being obeyed, was, after the return-day, personally served upon the judge to stay judgment, I do not think I am authorized to fix the costs on the defendant. The chief clerk ought to have informed the judge of the writ being served; and if he had done so, probably this question would not have arisen. The rule, therefore, must be discharged without costs.

Rule discharged without costs.

Bisi Prius.

COURT OF COMMON PLEAS.

SITTINGS AT WESTMINSTER.

February 4, 1851.

(Before Lord Chief Justice JERVIS.)

BOOTH (a pauper) v. CLIVE.
County Courts-Liability-High bailiff.

If a high bailiff upon a reasonable and bond fide belief that he is acting within his jurisdiction, he is entitled to notice of action, under the provisions of the County Court Act.

In this case Humfrey, Q. C., and Skinner, appeared for the plaintiff; and the Solicitor-General, Whitehurst, Q. C., and Davidson for the defendant.

This was an action of trespass, for an alleged illegal imprisonment, brought by the plaintiff, who is a carpenter, against the defendant, as judge of the Southwark County Court. The declaration alleged that judgment had been recovered in the Southwark County Court against the plaintiff by one William Greenwood Still, and that the defendant had made an order on the plaintiff for the payment of the amount recovered and costs; and that the plaintiff having afterwards been confined in the Queen's Prison, applied for relief under the Insolvent Debtors' Act, and inserted Still's name in his schedule, with a full description of the judgment recovered; and that afterwards, on the 28th July, 1849, he obtained his discharge under the Insolvent Act, after the expiration of six months from the time of his vesting order; and that after his discharge the plaintiff applied to the defendant to discharge the said order for payment, which it was the defendant's duty to do; yet the defendant, on the 26th of February, 1850, ordered the plaintiff to be committed for one calendar month to Horsemonger-lane Gaol, in consequence of which the plaintiff was imprisoned seven days there, and was obliged to pay a large sum of money to obtain his release. In another count of the declaration it was alleged that before the committing of the grievances complained of, a writ of prohibition was issued on the 26th of February, 1850, out of the High Court of Chancery, prohibiting the defendant and his officers from proceeding, or carrying into execution, or in any way giving effect to the said judgment; yet the defendant, not regarding his duty, had made an order on the said judgment, under which the plaintiff was imprisoned as above alleged. The damages were laid at 1,000%.

The defendant by his pleas traversed every fact in the declaration, and also pleaded that no notice of action had been given under the County Court Act.

It appeared from the opening of the learned counsel for the plaintiff that on the 15th of May, 1849, as stated

in the pleadings, a person named Still had brought a plaint against the present plaintiff in the Southwark County Court, and had there recovered 61. 2s. 4d. and 11. 9s. 6d. costs, which the present defendant, as judge of that Court, made an order on the plaintiff to pay by an instalment of 41. on the 29th of May, and the balance on the 29th of June. Before, however, any payment was made the plaintiff was taken in execution at the suit of another creditor, and in consequence petitioned the Insolvent Court, and obtained his discharge from all his debts, including the judgment debt due to Still. The plaintiff, therefore, did not pay the instalments which he had been ordered to pay, and thereupon Still had him brought before the County Court, and the plaintiff claimed the protection of his discharge, under the Insolvent Act. The defendant, however, notwithstanding, made an order that the plaintiff should pay the balance within a week, or be committed to prison for contempt, although it had then been decided in the Superior Courts, and the attention of the defendant was drawn to the case, that when a person was discharged under the Insolvent Act, the judge of a County Court should discharge him from custody for any judgment debt in that court. The defendant, however, said that he knew the County Court Act better than the judges, and that, in his opinion, the proceedings in his court were not affected by anything done under the Insolvent Debtors Act. In consequence of this decision the plaintiff's attorney made an affidavit of the facts, and obtained a writ of prohibition from the Petty Bag-office of the Court of Chancery, which was duly served upon the defendant. The defendant, however, said he did not care about that, and if the plaintiff did not pay he should send him to gaol. The plaintiff not paying, was taken into custody, and confined in Horsemonger-lane Gaol for seven days, until, on an application to Mr. Justice Coleridge, he was ordered to be instantly discharged. For this imprisonment, the present action was brought.

These facts having been proved,

It appeared, on cross-examination, that the plaintiff had been remanded for six months by the Insolvent Court for a fraudulent preference, but that his detaining creditor had consented to his discharge. This was the plaintiff's case.

The Solicitor-General objected that no notice of action had been given to the defendant.

The CHIEF JUSTICE said, he should leave it to the jury to say whether they thought the defendant had acted bona fide and with a reasonable belief that he was acting within his jurisdiction; if so, he was entitled to notice of action under the County Court Act. He thought the majority of men, under the same circumstances, would have done just as the defendant had done.

The Solicitor-General then addressed the jury for the defendant. He contended that the defendant, by the repeated adjournments of the case when it was before him, had acted mercifully towards the plaintiff, and that he could have no motive but to act impartially and justly towards him in the discharge of his duty. He appeared, however, to have fallen into an error, and had believed that the proceedings of the Insolvent Court did not take away his jurisdiction, and he refused to listen to the attorney who came before him, and said that Mr. Justice Maule had said something in a case recently before him on the subject. The act of Parliament, however, which gave him jurisdiction, as it contemplated the possibility of the judges under its provisions being some times placed in circumstances of difficulty, and likely to err, had given them the opportunity of making amends by requiring that a month's notice should be given them before an action was brought against them. In this case that provision had not been complied with. This was also the second action brought by the attorney on this

ground against the defendant. It was a pauper action, in which the defendant, if he lost, must pay the costs, and if he won, would get nothing. The writ of prohibition had cost the plaintiff more than the debt he was ordered to pay amounted to, and the writ had since been quashed.

Witnesses were called for the defence, to prove the quashing of the writ, which was one of the issues, and Humfrey having replied,

The CHIEF JUSTICE left it to the jury to say whether they believed the defendant had acted honestly and boná fide, believing that he was acting within his jurisdiction. If so, he was entitled to notice. If he should be wrong, he also requested them contingently to say what damages they thought the plaintiff entitled to for the injury he had received.

The jury thought the defendant had acted in the reasonable and bona fide belief that he was acting within his jurisdiction, and that if the plaintiff was entitled to damages they thought he was entitled to 40s.

The CHIEF JUSTICE then directed a verdict to be entered for the defendant on the plea of "Not Guilty," and that no notice was given, with leave reserved to the plaintiff to move to enter the verdict for him for 40s.

INSOLVENCY.

Reported by DAVID CATO MACRAE, Esq., of the Middle Temple, Barrister-at-Law.

January 17, 1851.

(Before the Chief Commissioner REYNOLDS.)
Re SAMUEL LAWRENCE.

Practice Application of discretionary clause. An insolvent who diminishes his capital in trade, after having obtained his certificate, by paying bills given to buy off oppositions to the granting of his certificate, is liable to remand under the discretionary clause. This insolvent had been a bankrupt in 1847, and he had given bills to the amount of 4007. to certain creditors, upon condition that they would withdraw their opposition to his certificate. These debts he had paid previously to contracting the debts in his present schedule; but notwithstanding this,

The CHIEF COMMISSIONER held, that it was not fair and honest insolvency. A man who had had the benefit of bankruptcy was bound to go unfettered, in the future prosecution of his business; but this man had bound himself hand and foot, and had been unquestionably impeded in many of his transactions by his conduct. He thought it wise in the opposing counsel not to press an individual case, but to place it under the discretionary clause. He was of opinion that it was not overstraining the act; but that it was a useful application of the discretionary clause to apply it under such circumstances as these.

The insolvent was remanded for six calendar months, under the discretionary clause (1 & 2 Vict.

c. 110, s. 76.)

insolvent clearly indebted by gross and culpable negligence, and without reasonable expectations of payment. This insolvent was a law stationer's clerk, earning on an average about 21. a week. He had made himself liable on three accommodation bills for a fellow clerk to the amount of 3431. 3s. which were the only debts in his schedule. There was no opposition.

Mr. Commissioner PHILLIPS (after consulting his brother commissioners), expressed his opinion that it was not a case contemplated by the act of Parliament. Petition dismissed.

January 22, 1851.

(Before the CHIEF COMMISSIONER.)

PROTECTION CASE.

Re JAMES PERRIAM.

Contracting debts without reasonable expectations of payment-Debts contracted in trade.

Semble, that "a debt contracted by a trader for goods in the ordinary course of his business has never been held to come within this provision of the statute (1 & 2 Vict. c. 110, s. 78), for if the articles purchased were obtained at a fair price, the trader must be presumed to have in the possession of them not only a reasonable and probable expectation of paying for them, but also of gaining a profit by the sale." (Cooke's Inst. Practice, 213: but

Held, that a trader in embarrassed circumstances is not justified in continuing to incur trade debts until he has spent his last farthing, and then come to the court for protection against his creditors.

Where there are cumulative facts indicative of inability to pay for goods ordered in the course of trade by an insolvent trader:

Held, that such debt will be held to have been contracted wtthout reasonable or probable expectations of payment. This insolvent was a tailor, who for fifteen years had carried on business in High-street, Fulham. His debts amounted to 2187. His business had fallen off during the last two years, as his former customers now got things at a cheaper rate at Moses and Sons', and similar establishments, than he could make thm. Upon the 6th of April, 1850, Mr. Stebbing, draper, Holborn, was a creditor of the insolvent, to the amount of 261. 2s. 2d., with a writ, at the suit of this creditor, consented to a for goods in his trade. The insolvent, upon being served judge's order to pay him 17. a week. The whole of this debt was paid by these instalments except 5l., for which, on the 19th December, he issued execution, and took possession of the household furniture. The insolvent was opposed by Sargood, for Mr. Matthews, draper, of for balance of goods in trade, supplied in course of 1850. Saville-row, Piccadilly, a creditor to the amount of 30%. The insolvent gave him a bill of exchange for 231. 5s. 10d., and it appeared from the schedule that this bill was indorsed to, who, on the 23rd December, 1850, got nothing in consequence of the previous execution of obtained judgment by default, and levied execution, but Mr. Stebbing. The insolvent filed his petition on the

28th December, 1850.

Sargood submitted that, as these goods were obtained when the insolvent was under a liability to pay 17. a week to keep out an execution, and with old debts hanging about him, the debt was contracted without reasonable or probable expectations of payment. He could not have had any reasonable expectation of being able to pay for those goods or any others he subsequently obtained.

The CHIEF COMMISSIONER.-There were bills banging over him at the time he contracted this debt.

Insolvent examined by Court.I had not any conver sation with the creditor when I ordered the goods. I did not inform him as to how I was circumstanced; I neither told him, nor did he ask, the state of my affairs.