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The CHIEF COMMISSIONER.-Why did he wait to incur new liabilities? Why did he not petition before he contracted these debts when there might have been ⚫ something for creditors?
Nichols.-Now, certainly, after all that had occurred, he should say he ought, but, in nine cases out of ten in the case of a struggling man, it might be said, when he at length was driven to the Court, that he had struggled too long. The Court would see what indulgence it could allow to the sanguine expectations of men. Was he really and bond fide struggling with his difficulties? The evidence showed that from June to October he was paying money by instalments, and he had reduced other other debts. It might, certainly, have been more prudent for him to have stopped sooner.
The CHIEF COMMISSIONER.-One thing is perfectly clear, that the Legislature did not contemplate that an absolute pauper should petition under these Acts of Parliament. It would be ridiculous otherwise to make a man swear that he was unable to pay his debts in full, and that he was desirous that his estate should be ad ministered by the Court, and that it was of such a value. And by holding this construction a man is not remediless. He may apply under the 1 & 2 Vict. c. 110.
Nichols. The act is certainly imperfectly expressed, but all the Courts had held that it was not a necessary condition that a man should give up any thing, and that would be proved by the fact, that in the majority of petitions nothing was given up.
The CHIEF COMMISSIONER.-But it is fair, when no property is given up, that the disposition of property possessed should be looked at rigidly in administering the law under these lenient statutes.
Nichols went on to submit that although it often happened that struggling men failed, yet it often happened that they brought themselves round. He did not know that the court had ever held that the moment a man was unable to pay he was to come to the court. These matters were all relative.
The CHIEF COMMISSIONER.-Were not these things cumulative upon him? Was he not sued just about the time he contracted this new debt? Was there any reasonable expectation of his being able to pay under such circumstances?
Nichols. He had paid off other debts, and the result, though disadvantageous to the opposing creditor, had not been to other creditors. This case simply presented the view of a struggling man persisting in trade in the hope of meeting his difficulties. He does not resort to accommodation paper or falsehood of any description. Under such circumstances a tradesman could always protect himself by inquiry into the circumstances of the debtor before he trusts him with his goods; and if any misstatement had been made, the court would hold him responsible.
The CHIEF COMMISSIONER.-I think, considering the state of his affairs, that he had no right to incur these liabilities. There was certainly no misrepresentation, no falsehood to bring him within the words "any manner of fraud;" but when he contracted this debt he was compassed about with difficulties, he was obliged to patch up one thing here and another there. He did not say, "I will go to these creditors and offer them the remains of my property." I do not think that this is a case thoroughly within the class of persons excepted on account of the reasonable expectations of turning his goods in trade. This man had now nothing. Why did he not come to the court when he had something to give up? Even 5s. in the pound would have been accept able.
No day named.
January 25, 1851.
(Before Mr. Commissioner PHILLIPS.)
Re CHARLES JOHN BEAMEANT.
The costs of opposition will be allowed when it is successful in bringing in property for the creditors.
This insolvent's case being over, counsel applied for costs of opposition.
succeeded in bringing in property he would allow the Mr. Commissioner PHILLIPS intimated, that if it had costs. He was not, however, quite certain whether the ascertain that fact at the audit, and if it appeared that estate would be benefited, but the registrar would would be allowed. the property had been brought in, the costs of opposition
allowing the costs of opposition under any circumstances. NOTE. This is the first precedent in this court for The courts are now unanimous in granting the costs of opposition at the audit if it has benefited the estate:-REPORTER.
Re GEORGE THOMPSON.
Interim order-Arrest for non-payment of instalments in County Court-Final order--Discharge of debtor from custody.
An insolvent, having an interim order of protection, arrested under process from a County Court for nonpayment of instalments of a debt in his schedule, will be discharged.
This insolvent, who came up in custody, having obtained his final order,
Sargood applied for his discharge from custody. The insolvent had filed his petition on the 3rd of December, 1850, and had obtained his interim order. Upon the 18th of December he was served with a judgment summons to appear in the county court before Mr. Serjeant Manning on the 21st of December. He did appear accordingly, but, notwithstanding that he showed his protection to the judge and the officer who was ordered to arrest him, he was taken to prison, where he had since remained. Mr. Commissioner Law had decided, in the case of William Symons (3 C. C. Chron. 197), who was taken into custody after obtaining a final order, that he should be discharged, as the debt for nonpayment of which he had been committed by the judge of the County Court of Whitechapel (Mr. Serjeant Manning), was duly entered in the schedule, and the insolvent consequently discharged by his final order from all liability on account of it. The court having now granted the final order, had power, by Commissioner Law's decision, to protect him, and he therefore prayed that he might be discharged
Mr. Commissioner PHILLIPS said he had looked into the case of Symonds, and it was not exactly in point. The point there was, whether an insolvent having a final order could be committed by the judge of a County Court in respect of a debt from which he was duly discharged. The question here was, whether the insolvent being under the interim order, he had a right to commit him. In the case before Commissioner Law, the arrest was after the final order; here it was after the interim order. This case was different. It appeared, however, to him, that the interim order was the same in principle as the final order. He would not consider this as a case of arrest after a final order, but as an arrest after an interim order, and deal with it in the same way as if he had his final order. The insolvent showed his protection to the judge and the officer who took him, and he should therefore
He may apply again in two months under the 28th discharge him. section.
A warrant for his discharge was made out, and the insolvent liberated. (No. 2,758.)
A person who has paid for admission to a theatre is not entitled to recover back the price paid because he was unable to obtain a seat or to see the performance.
The plaintiff sought to recover 28. money paid by him for the admission of himself and three others to the Grecian Saloon, of which place of public entertainment the defendant is proprietor. The return of the money was claimed on the ground of the parties being unable either to see or hear the performance in consequence of the crowded state of the theatre. În reply to His Honour the plaintiff said he had nothing further to state.
His HONOUR said the plaintiff had entirely failed to make out a case entitling him to recover; and intimated that it was not at all desirable that such matters should be made the subject of an action Judgment for defendant.
in a court of law.
RADCLIFFE v. CASELEY. Judgment Summons--Costs.
His HONOUR said there was no proof of any such tender. Roberts proposed calling a witness to prove the fact; but His Honour refused to allow such a course after the case had been given up; he could not permit an attorney to re-open his case after having abandoned it in the most positive terms.
DAVENPORT v. WILLIAMS.
The court will not, except under very special circumstances, permit the plaintiff to prove his case by the evidence of the defendant alone.
This was an action on a bill of exchange of which the defendant was the alleged acceptor.
The plaintiff was not in attendance, and the attorney who appeared for him proposed calling the defendant.
His HONOUR objected to such a course. Although the barrier had in some few instances been broken down, it was in his mind a very unenglish proceeding; it was in fact adopting the proceedings of a Court of Equity. The plaintiff might, if he had chosen, have taken the trouble to subpana some one to prove the defendant's handwriting; instead of which he relied solely on the defendant's evidence, not even having come himself to establish his claim. Nonsuited.
CLARKE v. HODGKINSON. Action for wages.
done that it had to be done over again.
The court will not allow the attorney for a defendant on a judg- It is no answer to an action for wages that the work was so badly ment summons his costs because the plaintiff did not appear. This was a judgment summons. The plaintiff not appearing, the defendant's attorney asked for professional costs, but which were peremptorily refused, His Honour observing that the defendant ought to think himself fortunate that his creditor was not in
February 12, 1851.
(Before Mr. Serjeant GAZELEE.) DISMORE V. HODSON.
Judgment summons—An agent.
This was a judgment summons. The defendant had paid an instalment of 21. into court since the order, but there were still three instalments in arrear. He now offered a further payment on 21, and urged in mitigation of his non-compliance with the order of the court, severe and unforeseen pecuniary losses.
A person of the name of Webb, who haunts the Whitechapel court as a sort of agent, appeared for the plaintiff and strenuously "pressed for a commitment.
The defendant entreated the court to bear with him. He had a family of eight helpless children; and if he was sent to prison his family must starve, and he should be deprived of meeting the urgent
claims of other creditors.
His HONOUR thought the offer now made by the defendant evinced a disposition to pay.
The "agent" however, was inexorable; nothing would satisfy him but a commitment.
The defendant observed that he believed the plaintiff was disposed to treat the matter leniently, but that his intentions were frustrated by the party who now appeared, who had urged the plaintiff to take coercive measures, and had threatened to have him in Whitecross-street fifty times, should he fail to keep up his instalments. The plaintiff would have taken the 21. yesterday, but this party would not allow him to do so.
The plaintiff sought to recover 1. 19s. for wages. The defendant disputed the claim on the ground of the plaintiff's inefficiency; the whole of his work, a slate cistern, &c. having been so badly performed that the surveyor directed it to be pulled down, and defendant had to pay other workmen to refix it.
His HONOUR said that was no answer to a claim for work and labour actually performed. It was the duty of masters to ascertain the abilities of workmen before they gave them employment. Judgment for plaintif
A case having been called in which the defendant had retained a solicitor, but who was engaged at Westminster, the defendant begged the indulgence of the court for a few minutes, by which time expected Mr. Delamare would arrive, that gentleman having sent in his clerk to make such statement.
Mr. Lewis of Ely-place having conferred with the defendant, offered his services in the event of Mr. Delamare not arriving time.
His HONOUR said he could not allow another attorney to take up the case, the defendant having intimated that he had a regular professional adviser.
Mr. Lewis wished the court to understand that he proffered, his services in courtesy to Mr. Delamare.
His HONOUR perfectly understood that, and was quite sure that both Mr Delamare and his client would be perfectly satisfied with such able assistance; but he could not, for the reason he had stated, allow the defendant to avail himself of Mr. Lewis's offer. The case could stand over for a short period.
SMITH V. THURSTON. Interpleader-Jurisdiction.
court under protest of the debt and costs.
Webb made another effort to address the court, but his eloquence The jurisdiction of the court is not omitted by the payment into was cut short by His Honour making an order in accordance with he defendant's proposition.
[Why is an agent heard at all? Why does not the court strictly, observe the rule of hearing none but the parties or their attorneys? -ED. C. C. C.]
February 14, 1851. (Before Mr. Serjeant JONES.) Practice.
The court will not permit a case to be re-opened after it has been abandoned by the party.
This was an action for work and labour; but the evidence of the first witness was so conclusive that the defence was abandoned. Roberts on the part of the defendant contended that as a sum of 51. 68. had been tendered, the judgment could only be for the difference, viz., 13s. 8d.
This was an interpleader summons. Ashley appeared for Miss Sophia Smith the claimant, and Lewis (Ely-place) for the execution creditor.
Ashley contended that the debt and costs having been paid into court under protest, the jurisdiction of the court was ousted, and that the execution creditor could not therefore proceed under the present form of action.
His HONOUR overruled the objection. The acceptance of the money was an accommodation to the claimant.
Miss Smith deposed that the whole of the goods were her property and that she had purchased them at various times of different tradespeople whose name she mentioned, and who were in attendance as witnesses.
On eross-examination the plaintiff admitted that an illicit intercourse had been carried on between her and Mr. Arthur, the defendant in the original suit. Mr. Arthur was her landlord, and in
that character had lived with her for the last twelve months; she ference, that the witness was keeping away to defeat justice; and had been acquainted with him between three and four years.
Several witnesses were examined as to the purchase of the articles by Miss Smith; but upon a sharp cross-examination it was elicited, that in several instances Mr. Arthur accompanied her when the purchases were made,-selected the goods, and in some instances paid for them.
His HONOUR said there was the strongest proof that the parties had been living together as man and wife, and that the present was an attempt to defeat the ends of justice. The judgment would therefore be for the execution creditor, and in a case of this description he should order the plaintiff to pay full costs.
HARVEY V. GODDARD.
Witness-Time for non-attendance.
A fine of 101. imposed upon a witness who had been subpœnaed for non-attendance.
The proceeds of the fine ordered to be applied towards payment of the expenses incurred by the plaintiff by reason of the witness's non-attendance.
This was an action to recover the sum of 331. balance of 50%. for the purchase of twenty-five shares in the Wheal Providence Mining Company. The case had been adjourned for the attendance of the attesting witness to the defendant's signature.
Parry read a letter from Mr. George William Reeve the secretary to the company, and who was the attesting witness, in which the writer excused his absence, on the ground that he was fearful that upon cross-examination something would be elicited from him prejudicial to the plaintiff's interest. Parry observed that a subpoena had been taken out, but the officer had not been able to effect a personal service. Mr. Reeves knew perfectly well that his attendance was indispensable, and there could be no doubt he was hostile to the plaintiff's interest.
Wakeling on the part of the defendant said he was equally as desirous as the plaintiff that Mr. Reeve should be in attendance, and to show that his client was sincere he had not only taken out a subpoena but had succeeded in serving it personally.
His HONOUR having directed the officer to call upon Mr. Reeve to answer to the subpoena, imposed upon the witness a fine of 57. for non-appearance.
Parry informed His Honour that the cash book which was in court on the former occasion was now in the witness's possession, and that even was not forthcoming, notwithstanding the plaintiff had given notice to produce all books, memoranda, &c., relating to the matter at issue.
His HONOUR wished Mr. Parry had mentioned that circumstance before; he would certainly have fined the witness 107. instead of 51. Parry hoped for the ends of justice that the original fine was not recorded.
His HONOUR said it was not, and fined Mr. Reeves 101. Wakeling submitted that the plaintiff must be non-suited. His HONOUR. Very well; but the defendant must pay the costs. Reeves was a party subpoenaed by both parties, and had in his possession a most important document belonging to the plaintiff. Parry had no objection to an adjourninent, on payment of costs by the defendant.
This course was adopted and the case was adjourned to Feb. 19.
February 19, 1851.
Mr. Reeve, the witness for whose attendance this case had been twice adjourned, and who had been again subpoenaed by both parties, appears to set the machinery of the court at defiance, or at all hazard to treat it with the utmost contempt. He was again absent.
Lewis, the officer of the court, informed His Honour that he had made every effort to serve the witness personally, but without success, and that he at length was compelled to leave the subpoena with the witness's clerk at the Company's offices No. 3, Walbrook buildings. Metcalfe, who held Mr. Parry's brief, submitted that the service was sufficient, and expressed a hope that the court would not allow the witness to escape with impunity.
His HONOUR-I shall again fine him 10%. for non-appearance, and he must absolve himself the best way he can. The fines I shall order to be paid in liquidation of the plaintiff's expenses.
Wakeling.-Your Honour will recollect that we also have subpoenaed the witness; and his attendance is as of much importance to us as it is to the plaintiff. I trust, therefore, that your Honour will order the defendant's expenses to be paid from the same source. His HONOUR.-I cannot forget Mr. Wakeling, that on the last occasion, a letter was read, from which there was the strongest in
that being so, I shall order the plaintiff's expenses to be paid out of the fine.
Wakeling. Respectfully, in justice to my client, I must protest against any such appropriation. We are most unjustly brought here. The witness has been fined upon our subpoena, and we have used the utmost diligence to bring him forward. It is but fair, therefore, I submit, that my client's expenses should be considered as well as those of the plaintiff.
His HONOUR adhered to his first determination, and the case was adjourned to the 4th proximo.
[CLERKENWELL COURT.-This court is perhaps one of the most incommodious in the metropolis. The Treasury cannot or will not afford curtains for the judgment seat. The box appropriated to the learned profession is thrown completely in the shade; whilst its opposite ally, the jury box, is also most inappropriately wrapt in darkness. The one is on the extreme east, the other on the extreme west, the centre of these two extremes being occupied by the attorney's table, a cumbrous piece of machinery, entirely intercepting the view between counsel and jury. The former, threfore, labours under considerable disadvantages, seeing that they have to "struggle in the dark." Another inconvenience is, that the plaintiff stands with his back to the counsel, and the defendant with his back to the jury. It is not, therefore, a matter of surprise that suitors sometimes complain of proceedings being taken behind their backs. No accommodation whatever is afforded the public press: so that it is exceedingly difficult, arising from the bustle and confusion which prevail from the pressure from without, to catch the arguments of counsel. The latter circumstance, indeed, appears to have supplied the high bailiff with a somewhat difficult study, for his oft-repeated enigma "why don't you be quiet?" seems never to have been satisfactorily answered. Great credit is due to him, however, for his perseverance in the cause, and for his extreme condescension in allowing his high and important duties to sink into those of a crier of the court. But notwithstanding his praiseworthy exertions to maintain order, his incessant command of "silence" seems rather to increase than diminish the confusion.-REPORTER.]
The substance of this action, as stated in the summons, was that previous to the 12th of December, 1849, the defendants had unlawfully obstructed the navigation for ships and vessels, within the pier of Penzance, by causing to be placed within the said pier a certain anchor, and certain stones, whereby a certain vessel called the Beryl, of which the plaintiffs were the owners, struck against the said anchor, or one or more of such stones, and was thereby damaged; and the summons further states, that by the statutes of 57 Geo. 3, and 3 Vict. c. 72, the defendants are entitled to receive certain dues and tonnage in respect of vessels entering and navigating within the pier, and that the defendants therefore are bound to keep the pier clear of all obstructions: they negligently omitted to remove the same, whereby the plaintiffs' vessel, on the 12th of December, 1849, ran against the said anchor, or the said stones, and sustained great damage.
The defendants rested their defence on three grounds. First, they denied the wrongful act that the plaintiffs' vessel struck against the anchor, or stones, as alleged. Secondly, they said, that if it did so strike, the plaintiffs, by their own want of ordinary care and caution, contributed to the accident; and thirdly, that in any event, the defendant as a public body would not be liable in damages under circumstances such as the present.
As regards the first point, which is one purely of fact, I have carefully weighed and considered the evidence on both sides since the hearing of this cause at the last court, and making all due allowance for the personal interest which the captain, and part owner
of the Beryl, would naturally feel in support of his own case, I still think that the balance of evidence preponderates in favour of the plaintiffs, and I come to the conclusion, that the damage complained of was occasioned by the Beryl's striking on the anchor in question on the evening of the 12th of December, 1849.
On the second ground of defence, the case of Bridge v. The Grand Junction Railway Company; Davies v. Mann and others, were cited by Darke in support of the legal proposition that, if the plaintiffs by ordinary care might have avoided the consequences of the defendants' negligence, they are not entitled to recover; and it was argued that this principle of law was applicable to the present case in this manner.
It was said that the Beryl draws ten feet, or more, of water; that the light at the pier head was extinguished before the pilot (Carbis) boarded her; that therefore, there must have been less than ten feet of water at the pier, by some inches, at the time the Beryl entered the harbour, and that the pilot and captain, having full knowledge of these facts, eutered wrongfully, and must take all the consequences resulting from their own rash and imprudent conduct. I do not, however, think that the circumstances under which the Beryl entered the Harbour afford any such answer to the action.
It must be remembered that the Captain and Jago, all speak of the light not being out until they were approaching the pier head, and Thomas Ford, the pilot of the Ann, would not venture to say that Carbis might not have boarded the Beryl before it was extinguished. The extinguishment of the light is not intended as a prohibition, but merely as giving aid and information to vessels desirous of using the harbour. There was a heavy sea, a dark night, and the wind blowing into the harbour, the captain had the choice of two evils, either to beat about until the next tide, or make for the pier at all hazards with a scanty supply of water within. In the exercise of their judgment, and acting, as they thought, for the best, they chose the latter course. It might be that they exercised a sound discretion had the Beryl met with no artificial obstruction, for the bottom of the harbour being of mud and sand, although she had not so snug a berth as the Ann, still she would have been comparatively in a place of safety until the next tide, for it does not appear that the stern of the Beryl, which the defendants' witnesses described as being unprotected, met with any damage by the exposure.
As regards the liability of the defendants, it was urged by Mr. Darke, on the authority of cited cases, that being a public body discharging public functions without emoluments, they would not be answerable in damages, if neither malice nor gross negligence were proved; but here these defendants do receive emoluments in that same corporate character in which they are made defendants, and if a private injury is sustained by the act, whether of omission or commission, I am clearly of opinion the individual might have his remedy by action. The corporation has jurisdiction within the pier and harbour, &c., by the 57 Geo. 3, and 3 Vict., the compact entered into with the public is this:
If you, the owners of vessels, will pay certain tonnage dues and rates, we, the corporation, will so exercise our jurisdiction, as to give your vessels a safe and commodious place of retreat. The rights and duties are reciprocal, and hence would arise a common law obligation, to use all reasonable care in rendering the harbour secure. Now what is the negligence complained of? This anchor has been for many years on the spot it now is, with a chain attached, occasionally used for mooring. For some time past it had been but slightly imbedded in sand, the crown and stock at times appearing above the surface: so far back as the year 1847, it seems that the Pearl sustained injury by this same anchor, and the captain and 'Mathews made mention of it to persons connected with the cor-1 poration; but whether there was express notice or not, it was the duty of the defendants, through their appointed servants to have been vigilant, and to have seen that which others have seen, and to have done that before, which they had done soon after this accident
The anchor has since been deeply embedded, with a buoy attached to it, and it seems to me, that this affords something like evidence, that the accident had been attributed to this anchor, and that its former position was considered as dangerous. As to the damages, it appears that Mr. Matthews repaired the Beryl at a cost of 721. The fore-foot and keel were about 351. of that sum. It seems that, previous to December, 1849, her timbers had sustained some injury, which the evidence does not enable me accurately to apportion.
As, however, the whole amount exceeds 70l., I think that judgment may well pass for the plaintiffs, with 50%. damages; the excess being abandoned by the plaintiffs.
SHOREDITCH COUNTY COURT.
February 10, 1851. (Before Mr. Serjeant STORKS.)
COLLIER v. PINTS.
Circumstances under which the court allowed the costs of plaintiff's attorney. The court has not yet determined whether or not
to allow the costs of attorney in all cases above 51. The plaintiff in this case is a medical gentleman. The defendant allowed judgment to go by default. The plaintiff's attorney asked for professional costs, the amount sought to be recovered being above 51.
His HONOUR said it was very desirable that there should be a uniform system, but he was not at present prepared to come to the determination of making it a general rule to allow costs in every case where the debt or demand exceeded 51. He was desirous of giving all effect to legal assistance, and to afford every facility to intelligent practitioners, to whom the suitors as well as the court, were frequently indebted. In this case the plaintiff was a medical man, and his services were indispensable elsewhere. The defendant was a man who could afford to pay, and he had put the party to the expense and inconvenience of prosecuting his claim, and had not thought fit to offer any defence. In such a case he was of opinion that he ought to allow costs.
An order was accordingly made for the payment of debt and full
September 24, 1850. PRETYMAN V. VENTRIS. Summons.
Where a debt is due to a firm, one of whose partners has since died. is it necessary to sue in the names of the surviving partners and the executor of the deceased partner ?
Buchanan, for plaintiff, stated that his client sought to recover 12. odd, for goods sold and delivered, for rent, and for money received on the plaintiff's account.
The defendant, who is an accountant, and had been employed to keep the plaintiff's books, pleaded a set-off of 51. for overtime, and 11. 5s. also for extra services.
It appeared from the plaintiff's evidence that defendant had been engaged at a salary of 21. 2s. a week, and that plaintiff had allowed him 151. for extra services in August '49, when there was a final settlement of accounts, leaving a balance of 27, in favour of plaintiff, for which sum defendant gave him an IO U. The plaintif disputed the 17. 58. at the the time the accounts were adjusted, defendant having placed it to his own credit in plaintiff's ledger without his knowledge or authority, and the amount was accordingly struck out. Defendant had not been employed by plaintiff since that period.
His HONOUR observed, that an entry so made was to be looked at with great suspicion, and, if allowed, would be calculated to lead to most disastrous consequences.
With regard to the other portion of the set-off (57. for 100 hours overtime), defendant said he had forgotten to charge it in his former claim for extra services: the money was due to his brother, who had assisted him in arranging the plaintiff's books. Buchanan-A claim which you entirely forgot to make until the present action was commenced.
The defendant's brother deposed that he had been employed the number of hours charged, and that he had repeatedly asked de
fendant for a settlement of the claim.
His HONOUR was of opinion that there was no foundation for the slightest claim to a set-off. It was impossible to believe that the defendant, who was being constantly pressed for money by his brother, would allow such a claim to stand over, and that he would not have made it at the time when he made out his claim of 151 for 300 hours' extra services. He believed it was included in that account, no intimation of such a demand having been made to the plaintiff on the final settlement of accounts between him and defendant in August, 1849. His Honour observed, that there would be no safety for mankind if accounts were to be ripped open, and such claims allowed. The judgment would, therefore, be for the plaintiff for the full amount.
The defendant asked His Honour if he would allow him to take a technical objection to the summons.
Buchanan submitted that such an objection came too late, the case having been decided upon its merits.
His HONOUR thought that, as defendant had not the advan
The defendant then objected to the form of summons, on the ground that the plaintiff, who was a surviving partner of a firm, had sued in his own name merely instead of suing in the character of executor, or as such surviving partner.
His HONOUR said he would reserve the point, although he was clearly of opinion, notwithstanding the debt was contracted with two partners, it belonged to the surviving partner. In the meantime an order was made, with the concurrence of the plaintiff, for payment at 158. a month.
Drayton, February 10, 1851.
Before U. CORBETT, Esq.
The High Bailiff's fee for execution is payable if he goes to the premises, even although he is unable to levy by reason of the goods being claimed as the property of another.
Judgment was given for plaintiff for debt and costs at the last December court, and a fi. fa. warrant was obtained by plaintiff, on which he paid 9s. 4d., the fees for warrant and execution of it. The High Bailiff attended with the warrant at defendant's father-inlaw's house, where defendant resided, and was told by the fatherin-law that nothing there belonged to defendant. Upon this the High Bailiff made an immediate return of nulla bona. Grimley, for the plaintiff, applied for an order to return the fee of 88. paid for execution of the warrant, and he contended that no fee was payable, except the clerk's fee of 1s. 4d. for the warrant, because there had been, in fact, no "execution" of the warrant, and he urged the practice with the sheriff's officer to be the same. But His HONOUR, having referred to the new table of fees, ruled that the High Bailiff was entitled to the fee for executing the warrant, as he considered his going to the premises where defendant resided, though there were no effects whereon to levy, was an execution of Order refused.
SOMERSETSHIRE, Bath, February 1, 1851. COWAN v. VIVIAN.
Interpleader — Assignment of stock-in-trade and effects for benefit of creditors.
An assignment purporting to be for the benefit of creditors is not valid against an execution creditor, 1st. When there is the absence of notoriety in the transaction, as no advertisement of change of possession, or notice. 2nd. If no inventory be taken, so as to enable the very goods to be ascertained. 3rd. When the trustee is a friend of the debtor, and the latter has been left in undisturbed pussession of the property.
Mr. James Cowan, of Edinburgh, had obtained judgment in this court against the defendant, who was indebted to him in the amount of 51.78. 8d., and had levied an execution on the ostensible effects of the defendant. The defendant, who is a stationer carrying on business in Broad-street, had executed in November last a deed of assignment, in which he assigned over to four trustees all his stockin-trade, household furniture, and outstanding debts, in trust, for the benefit of such creditors as chose to accept a composition of 7s. 6d. in the pound. The largest creditor, a Mr. Evans, his predecessor, in the same business, to whom the defendant was indebted in the sum of 4007., it was stated, refused to accept the composition. The names of the trustees are Charles Olds, Thomas Gosse, William Henry Brumby, and John Murch, who put in a claim to the effects, with a view to defeating the claim of Mr. Cowan. Slack appeared for the three first-named trustees, and Hellings for Mr. Murch. Allen, instructed by Fisher, was retained as counsel for the execution creditor.
Allen raised an objection, that the claimants had not complied with the 39th Rule of the Court, which compelled them, five days before the day of hearing, to deliver to the officer of the court a par ticular of any goods alleged to be the property of the claimants. He contended that a description, such as had been delivered, was not sufficient, but that an inventory ought to have been given. He quoted cases in support of his view of the subject; but his Honour considered that the rule had been substantially complied with. He also raised an objection that the deed of assignment had not been stamped until three days after the execution had heen levied; the execution having been levied on the 21st of December, and the
deed having been stamped on the 24th of December. He submitted that the deed could not be held to be valid until it had been stamped; and, in fact, from the absence of a stamp, there was no deed in existence at the time of the execution. Hellings, in reply, called attention to the common practice of sending deeds to the Stamp-office on the very eve of trials in which they were to be produced. His Honour held that the deed was just as valid as if it had been stamped in the first instance.
Hellings called James Clark to prove the signatures of the parties whose names were appended to the deed of assignment. He then read the document, from which it appeared that Samuel Vivian, finding his circumstances embarrassed, had agreed to pay to those creditors who came in and signed the deed 7s. 6d. in the pound, to be paid in three different instalments of 2s. 6d. each, Messrs. Olds, Ross, Brumby, and Murch, becoming sureties for the payment of such instalments. The whole of the stock-intrade, furniture, &c., in and about the house, shop, and premises, in Broad-street and elsewhere, were assigned to them on trust; and in case of default of payment of the instalments, the trustees were empowered to sell and dispose of the stock, &c., for the benefit of
the creditors. He also stated that notice of the intended
assignment had been given to all the creditors, and that Mr. Cowan had come in with his father, under the firm of Messrs. Cowan and Sons, of London, and had become a party to the deed.
Mr. Vivian was then called, and stated that, on finding his affairs embarrassed, he had consulted Mr. Slack, by whom a meeting of creditors was convened. Messrs. Alexander Cowan and Sons were creditors; witness knew Mr. Watson, a traveller for Messrs. Cowan; from him witness learned that Mr. James Cowan was one of the partners. I was to carry on business on account of the trustees, in my own name; have done so, keeping account of the moneys received by me daily, and making entries of all the expenses. The balance, at the termination of the first week, was 57. 10s. 9d., which on Monday morning I paid to Mr. Olds. Have kept a similar account to the present time. Part of the stock was seized at the suit of Mr. Cowan Cross-examined by Allen: Mr. Slack had an inventory of the property at the time of the execution of the deed; it was taken by me. My heaviest creditor is Mr. William Evans, to whom I owed 4001. odd. My name is over the door now. No notice of the assignment was given in the papers. Have never told any one who came in that I was managing the business for the creditors, but I have told Mr. Cowan so, and referred him to the deed. The stock and furniture were appraised by Mr. Simms, of George-" auction. The actual value might have been 500, not more. I street. The whole of the property would fetch 350l., if put up to handed the inventory which I made to Mr. Slack, my attorney.-His had handed it to Mr. Hellings; and that gentleman stated that he Honour expressed a wish to see the inventory, but Slack said, he had sent it to Mr. Evans, who had retained it.
Evidence was then tendered by Hellings and Slack, to prove that Mr. James Cowan was one of the firm of Alexander Cowan and
Sons, whose name was appended to the deed, and counter evidence was adduced on the other side; but his Honour thought that no conclusive testimony had been given to show that James Cowan was a partner to the deed in his own right.
Mr. Olds stated that "he is not a creditor of Mr. Vivian, in whom he has the greatest confidence, having had no reason to doubt him. so far."
Hellings called his Honour's attention to different cases bearing on the one now before the court. He contended that the trustees were more deeply interested than the creditors themselves; that possession by the trustees was not necessary to establish their claim; that there was nothing in the case inconsistent with the deed; and that the trustees ought to be protected against the creditors who would not come in. Slack also aiduced several cases, none of which his Honour thought exactly relevant to the case.
His HONOUR said that, had the paper been put in which purported to be an inventory (but which turned out to be nothing more than a statement by Mr. Vivian of what he called the value of the goods), that paper might have had an important bearing on the merits of the question. Its non-production was a material feature in the case, and shook the claim on the part of the trustees against the execution creditor. Nothing had been produced to show the value of the goods; only a loose estimate had been made by a person who was not a broker, and who said that 350l. was the amount which the effects might have been expected to produce if sold by auction. The debtor was left in uncontrolled management of the business; he could buy, sell, and use what he liked for his own purposes. The cases adduced differed from the present in one important particular: they were assignments to trustees for the benefit of all the creditors, such trustees to come into immediate