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Full text of "Reports of cases argued and determined in the High Court of Chancery, in the time of Lord Chancellor Hardwicke. [1736-1754]"

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vofccil "j ^\HuUoU, 




<&se 







REPORTS 

O F 

C A S E S 

ARGUED AND DETERMINED 

3n tije ^tg& Court of Cfwncerp, 

' IN T&B TIME OF 

Lord Chancellor 51ARDWICKE. 

• - 

BY 

JOHN TRACY ATKTNS, 

Of Lincoln's Inn, Efq. 

Cursitor Baron of the Exchequer. 



The THIRD EDITION, rcvifed and correSed ; 

With' Notes, and References to Former and Modern 

Determinations, and to the Register's Books, 

3y FRANCIS WILLIAMS SANDERS, 

Of Lincoln's Inn, Efq. 

Author of An Essay on the Law of Uses and Trusts. 



IN THREE VOLUMES. 
VOL. I. 



LONDON: 
printed by a. straham and w. woodfall, 

LAW-PRINTERS TO THE KING'S MOST EXCELLENT MAJESTY; 

FOR £. AND R. BROOKE, J. BUTTERWORTH, T. CADELL AND W. DAVIS, 
A. STRAHAN, T. N. LONGMAN, W. OTRIDGE, T. PAYNE, R. PHENEY, 
F. AND C. R1VINGTON, G. O. AND J. ROBINSON, W. CLARKE AND SON, 
» SU HAYES, W. RICHARDSON, AND OGILVY AND SPEARE. 

1794. 



THE 



L 



PREFACE. 



IN the books of Reports which have lately 
been published, the Cafes by being placed in 
the order they were determined, without the 
leaft connection in refpedl to the matter, are if 
I may be allowed the expreflion, a Journal of 
Cafes only, and, upon that account, more likely 
to confound the reader, by ftepping fo abruptly 
from one headpf equity to another, than if he 
was to take in, at one view, the whole that 
relates to each feparate branch: This was the 
reafbn which induced me to range the Cafes 
under their particular heads of equity, in an 
alphabetical feries; and though my methodiz- 
ing them in this manner, has occasioned me 
infinite trouble, yet I fhall think myfelf fuffi- 
ciently recompenfed, if it anfwers the end I x 
defign by it, which is, inftead of a *book of 
reports, to make it, in fbme meafure, a digeft, 
or fyftem of equity. 

I am aware only of one obje&ion, that in 
the fame cafe there may arife different points 
of equity, which do not correfpond with the 
principal one; this I hope is obviated, by a 
reference under the proper heads, to the re- 
fpe&ive pages, where thefe feveral points may 
be found. 

Vol. I. A 2 It 



^io(»c-U V ^.KuluvlY. 




W 



). 



Ow • XT .K • 
lOO 

A b'-T-3 



4%sr 







Ml.. 






J'f 



r 



£ ft I ¥ O It's PREFACE 



TO THE 

fHIRD EDITION. 

HAVING completed a Third Edition of 
Mr. Atkynss Reports, the Editor thinks it 
neceflary to acquaint the Profeffion with the 
general plan, which he has purfued upon this 
occafion. To examine the cafes with the Re- 
gifter's Books, and to corredl them, when 
found neceflary, has been his principal objeft. 
Where a correction has been thought in any 
wife material to the decifion of a Cafe, it has 
been diftinguilhed by a feparate note. In fome 
yrery few inftartces a flight alteration in the' 
original text has been adopted, with a view 
of making it correfpond with the Regifter : 
but this has been done in fuch cafes only, where 
the alteration has been deemed too inconfi- 
derable to require a diftindl note. In other 
refpeds the original text has been fully pre- 
ferved. When it has been thought unneceflary 
to make extratfts (the cafe, being confidered 
fufficiently correct without them), a mere refer- 
ence to the folio, letter, and year of the Regifter's 
Book has been added. The Editor mull take 
this opportunity however of obferving, that he 
has frequently experienced his refearches in the 
Regiiter's Books anticipated by the previous 

A 3 labours 



VI 



PREFACE. 

labours of Mr. Atlym. That gentleman, before 
the publication of his Reports, had certainly 
compared many of them with the records ; and 
this is evident, not only from his own declaration 
in the preface to his fecond volume, but more 
efpeciaUy as many of his flatements of cafes 
and decrees thereupon are taken alnioft ver- 
batim from the Regifter's Books. 

To the prefent Edition a variety of refer- 
ences have been made to cafes determined, as 
well before, as fubfequent, to the original pub- 
lication of thefe Reports. Some MSS. Cafes 
have ikewife been added ; and to each volume 
is prefixed a Table of the Names of the Cafes 
referred to by the notes contained in iuch 
volume. Upon points which have been con- 
fidered material, notes have been fubjoined, 
in which the principles of the feveral cafes 
relative thereto, have been carefully extracted 
and explained. 

The Editor has now to exprefs his hopes, 
that the additions, which he has made to this 
Edition, may render this work ftill more ufeful 
and acceptable to the Profeffion. 

Lincoln' s-Inn New Square, No. 7. 
Otlober loth 1794, 



B 



E 



O F T H E 

NAMES* of the CASES; 

Alphabetically difpofed, in fuch a double Order, as that the. Cases may be 
found by the Names either of the Plaintiffs or Defendants. 

N. B. Where verfus follows the firft Name, it is that of the Plaintiff; where 
and, it is the Name of the Defendant. 



A. 

ABERGAVENNY (Lord) 
and Conyers. Page 285 

Abingdon and Prowfe. 482 

Anonymous. 19, 51, 84, 88, 102, 
138, 140, 262, 263, 489, 491, 

S*9>S* l >51 l > 578. 
Argles v. Heafeman. 
Alton and Harvey. 
Atkins v. Hiccocks. 
Atkyns v. Farr. 
Attorney general v. Do&or 

phcns. 

. v. Glegg. 

_— — v. Jcanes. 

-v.Pyle. 

« v. Hayes* 

Aynfcombe and Frederick* 



B. 
Baker and Smith. 
Baldwyn and Benfon. 
Banks, ex parte. 
Barker and Omichund. 
Barker and Ramkifienfeat. 
Barker and Ramkifienfeat* 
Bartholomew v. May. 



518 
361 
500 
287 
Ste- 

358 
356 

355 
435 
35* 
392 & 
627 

385 

598 

106 

21 

19 

5i 
487 



Barwell v. Ward. 
Bateman v. Bateman. 
Bates and Glover. 
Baudier, ex parte. 
Beafley v. Beafley. 
Bedford (Duke of) fnd 

Belcher and Green. 
Bellafis v. Uthwatt. 
Belton, ex parte. 
Bennet and Kelfall. 
Bennet and Leake. 
Benfon v. Baldwin. 
Billon v. Hyde. 
Blake and Duncalf. 
Bland s ex parte. 
Blatch v. Wilder. 
Blunt's (Sir Henry) caf«. 
Bodenv. Dellow. 
Bond and Hill, ex parte. 
Botteril, ex parte. 
Bouget and Jones. 
Boughton v. Bough ton. 
Bourne v. Dodfon. 
Bower v. Swadlin. 
Boycot v. Cotton. 
Boyle and Graves. 

A 4 



Page 2<Sb 
421 

439 
98 

97 

Charlewood. 

497 

425 
251 
522 
470 
598 
126 

5* 

429 

295 

289 
98 

109 

298 
625 

154 
294 
552 
509 

Bradfhaw 



A T ABLE of the Names of the Cafes. 



Brad (haw and Richardfon. 
Brandling v. Ord. 
Bromley v. Ooodier. 
Bromley v. Child. 
Bromley and Primrofe. 
Brown v. Higden. 
Brown v. Jones. 
Brown v. Heathcote. 
JJuckinghamQiire (Dutchefs 

Sheffield. 
BudgeH and Graves. 
Bullen and Humphrey. 
Burchall, ex parte. 
Burgoyne v. Fox. 
Burroughs and Morris. 
Burroughs and Walker. 
Burton, ex parte. 
Butler ow/Purnel, ex parte* 
Butler and Purnel, ex parte* 
Byas, ex parte. 

C. 



of) 



Page 128 
571 

75 
259 

89 
291 
188 
160 
and 
628 

44 1 
458 
141 

575 

399 

93 

255 
210 

215 

124 



Calcot, ex parte. 
Calthorpe and Okeefe. 
.Capot, ex parte. 
Carington, ex parte. 
Cafborne v. Scarfe. 
Cafwell, vx parte. 
Cattcral v. Purchafe. 
Cecil v. Juxon. 
Chamberlain v. Knapp. 
Champion v Pickax. 
Chapman v. Turner. 
Chappel and Hawkins. 
Charlewood v. Duke 



of 



Cheefeman v. Partridge. 

CncfariieM (Earl of) v. Janflcn 

Child, ex parte. 

Child and Bromley. 

Clark and Van. 

Clerk v. Wright. 

Clifton v. Orchard. 

Coates and Dun. 

Colebrooke and Deggs. 

Collet v. Collet. 

Conycrs v. Lord Abergavenny. 

Cooper v. Pepys. 

Cotton v. Luttrell. 

Cotton and Boycot. 

Coyfc^ame, ex parte. 



497 

43 6 

.301 

111 
259 

5io 

12 

610 

288 

39<* 
11 

285 
io5 

45i 
55* 
19% 



209 

17 
219 

206 
603 

559 
290 
278 
52 
472 

54 
621 

Bedford. 



Crefwick v. Crefwick. 
Crifp, ex parte. 
(Humming and Robinfon. 

D. 

Davenport v. Oldis. 
Dawfon v. Dawfon. 
Dcczc, ex parte. 
Deggs v. Colebn>oke. 
Dellow end Bodcn. 
Defanthuns, <•>• f n-:e. 
D c i ch an ne s , e •: i wrte. 
Do Saufmarcz, i.< parte. 
Dixwell arid Roberts. 
Dodfon and Bourne. 
Dorvillicrs, ex pttrte. 
Dowding and Rrdout. 
Drury v. Man. 
Dumas, f.v parte. 
Dun v. Coates, 
Duncalf v. Blake. 
Durant v. Preftwood. 

E. 

Ede v. Ling wood. 
Edwards, ex parte. 
Ellis, ex parte. 

F. 

Farr and Atkins. 
Fawkner et ux y v. Watts. 
Fawkner v. Watts. 
Fletcher and Hutt. 
Flyn and Field, ex parte. 
Fox v. Fox. 
Fox and Burgoyne. 
Frecker and Norton. 
Frederick v. Aynfcombe. 
Fry v. Wood. 
Fydcll, ex parte. 

G. 



Page 291 
'33 

473 



579 

1 

396 
289 

HS 

103 

84 

607 

• i54 
22 1 
419 

95 
232 
288 

5* 

454 



203 
100 
401 



287 
405 
406 
407 
1S5 
4^3 
575 
524 
392 & 627 

445 
7J 



Garbut v. Hilton. 
Gayter, ex parte. 
Gibbons, ex parte. 
Gibfon v. Paterfon. 
Giffbrd and Nugent. 
Glegg and Attorney general. 
Glover v. Bates. 
Glyn and Harding* 



38t 
144 
238 
12 
463 

35<* 

439 

469 

Goodicr 



A T A B L E of the Names of the Cafes. 



Gcodicr and Bromley. 


P«g* IS 


Cioodierv. Lake. 


446 


Goodwin, ex parte* 


100 


Graves v. Budgell. 


444 


Graves v. Boyle. 


509 


Green v. Snith. 


57* 


Green v. Belcher. 


5°5 


Green, ex parte. 


202 


Green, ex parte* 


257 


Green and Earl of Suffolk. 


450 


Greenaway, ex parte. 


"3 


Gregnier, ex parte. 


9 £ 


Grey v. Keutifh. 


280 


Gtier, ex parte. 


207 


Groom, ex parte. 


i*5 


Grove, ex parte. 


104 


Culfton, ex parte. 


139 


Gulfton, ex parte. 


193 


H. 




Hall v. Terry. 


502 


Hall, ex parte. 


201 


Hammond and Ruffel. 


*3 


Harding v. Glynn. 


469 


Harrifon v. Owen. 


520 


Harrifon v. Southcote. 


528 


Harrifon and Jeffreys. 


468 


Harvey v. Afton. 


36 £ 


Hawkins v. Chappel. 


621 


Hawkins v. Leigh. 


387 


Hays and Attorney general.. 


356 


Hayes and Lake. 


28l 


Hayward v. Stillingfleet. 


422 


Heafeman and Argles. 


S i8 


Heathcote and Brown. 


160 


Heather v. Rider. 


42 S 


Herring v. Yoe. 


290 


Hervey v. Hervey. 


5*i 


Keylxn and Prince. 


493 


Hiccocks and Atkins. 


500 


Higden and Brown. 


291 


Highmore v. Molloy. 


206 


Hill v. Turner. 


515 


Hill v. Bilhop of London. 


618 


Hilton and Garbut. 


381 


Hinton v. Toye. 


465 


Holliday, ex parte. 


209 


Hopkins alias Dare v. Hopk 


ins. 581 


Hudfon v- Hudfon. 


460 


Huet v. Fletcher. 


467 



*Jl 



Humphrey v. Bullen. Page 458 


Hunter, Henry Lanoy, ex parte. 


223 


Hutchins v. Lee. 


447 


Hutchinfon and Molton. 


558 


Hyde an d Billon. 


126 


Hylliard, ex parte. 


H7 


I. 

Jackfon v. Jackfon. 


5*3 


Jackfon and Ramfcjen. 


292 


Janffen and Earl of Chefterfield. 


301 


Jeanes and Attorney General. 


355 


Jeffreys.*/. Harrifon. 


468 


Johnfqn, ex parte et al 9 . 


8r 


Jones v, Bougett. 


298 


Jones and Brown* 


i83 


Ireland v. Rittle. 


541 


Ives v. Medcalfe. 


63 


Ivie v. Ivie. 


429 


Juxon v. Cecil. 


278 


K. 




Kelfall v. Bennct. 


522 


Kentilh and Grey. 


28a 


Kerney, ex parte. 


54 


King, ex parte. 


300 


King and Woodcock. 


266 


Kirk, ex parte. 


108 


Knapp an d Chamberlain. 


5* 


L. 

Lake and Goodier. 


446 


Lake v. Hayes. 


281 


Lane, ex parte. 


9* 


Lawfon v. Stitch. 


5°7 


Leaverland, ex parte. 


MS 


Le Compte, ex parte. 


2$I 


Lechmfere and Manning. 


453 


Lee and Hutchins. 


447 


Lee and Oxley. 


625 


Leeke v. Bennett. 


4*70 


Leigh and Hawkins. 


387 


Leigh and Miles. 


573 


Lewes, ex parte. 


>54 


Lewis and Ridout.- 


269 


Lewis and Wyld. 


43* 


Lindfey, ex parte. 


220 


Lingood v. Eads. 


195 


Lingood and Hade, 


203 


Lingood, ex parte. 240 

Litchfield 



A TabLe of the if anus of the Cafes. 



Litchfield (Earl of) v. Sir John 
Williams. Page 87 

London Affurance Company and 
Motteux. 545 

London (Bifhop of) and Hill. 6 1 8 

Ldwe and Smith* 489 

Lucas Vm Lucas, 270 

Luttrell and Cottcta. 45 x 



M. 

Macey v. Shurmer. 
Man and Drury. 
Manning v. Lcchmere. 
Marlar, ex parte. 
Marlborough (Dutchcfs of) 

Thomas Wheat. 
Marih, ex parte. 
Marfliall etaf, ex parte. 
Marfhall et af 9 3 ex parti* 
'Marfhall, ex parte. 
Mafon and Palmer. 
Mafley and Twifs. 
May and Bartholomew* 
Medcalfe v. Ives. 
Meymot, ex parte. 
Mitchell, ex parte • 
Miles v. Leigh. 
Minfhull v. Minfhull. 
Molloy and Highmore. 
Molton v. Hutchinfon. 
Monnier and Powell. 
Moore v. Moore. 
Morgan v. ■■■ 
Morgan v. Morgan. 
Morgan v. Morgan. 
Morgan and Probert. 
Morris v. Burroughs. 
Motteux v. London Aflurancc 



pany. 



N. 



Newflead v. Searles, 
Newton, ex parte. 
Nicholls v. Nicholls. 
Noel and Thompfon. 
Norton v. Frecker. 
Nugent v. Giftbrd. 
Nutt, ex parte. 

o. 

. Ockenden, ex parte. 
Okeden.v. Okedcn. 



389 

95 

453 
150 

v. Sir 

454 
158 
129 
262 

, 3 I 

5°5 
67 

487 

63 
196 

120 

573 
411 

206 

558' 

611 

272 

408 

53 
489 
440 

395 
Com- 

545 

91 

409 

60 

524 
463 

102 

235 I 
55* 



O'Kecfe v. Calthorpe. 


Page 17 


Oldis and Davenport. 


579 


Oliver v Taylor. 


474 


Omichund v. Barker. 


21 


Orchard end Clifton. 


610 


Ord aid Blandling. 


% 57i 


Owen v. O'.ven. 


494 


Owen and Harrifon* 


5^0 


Oxley v. Lee. 

P. 

Palmer v. Mafon. 


625 


505 


Parfons, ex parte. 


72 


Parfons, ex parte. 


2«4 


Partridge v. Pawlet. 


467 


Partridge and Cheefeman. 


43 6 


Patterfon and Gibfon. 


12 


Peachy, ex parte. 


in 


Pepys and Cooper. 


106 


Phipps v. Steward. 


285 


Pickax and Champion. 


472 


Pierfon v. Shore. 


480 


Pilkington and Mayor of York. 282 


Plummer, ex parte. 


103 


Powell v. Monnier. 


611 


Prefcot, ex parte. 


230 


Prefcot and Snee. 


245 


Preflwood and Durant. 


454 


Primrofe v. Bromley. 


89 


Prince v. Heylin. 


493 


Probert v. Morgan. 


440 


Proudfoot, ex parte. 


252 


Prowfe v. Abingdon; 


482 


Purchafe and Catterall. 


290 


Purfe v. Snaplin. 


414 



Quincy, ex parte. 477 



Ramki(Tenfeat v. Barker. 19 

RamkifTenfeat v. Barker. 5 1 

Ramfden v. Jackfon. 292 

Read and Smith. 526 

Richardfon v. Bradihaw. 1 28 

Ridout v. Dowding. 419 

Ridout v. Lewis. 269 

Rittle and Ireland. ' 541 

Rivers's cafe. 410 

Roberdeau v. Rous. 543 

Roberts 



A T A B I. E of the Names of4he Cafes. 



Page 607 

473 

244 

»3 

448 

59 
165 



Roberts v. Dixwell. 
Robinfon v. Cuming. 
Rooke, ex parte. 
Ruflel v. Hammond. 
Ruflel and Whitton. 
Rjall v. Ryall. 
Ryall v. Rolle. 

S. 

Sandby, ex pdrte. 149 
Sandon, «* parte. 68 
Scarfe W Cafborne. 603 
Scarlcs and Newftead. 265 
Shank, ex parte. 234 
Sheffield v. Duchefs of Bucks. 628 
6hore and Pierfon. 480 
Shorrall and Willis. 474 
Shurmer and Macey. 389 
Simpfon et aP y ex parte. 68 
Simpfon et aF, ex parte. 70 
Sirapfons bankrupts* 137 
Smith, ex parte. 139 
Smith v. Baker. 385 
Smith v. Read. 526 
Smith v. Lowe. 489 
Smith and Green. 572 
Smithfon (Sir Hugh) v. Thomp- 
son. .520 
Snaplin and Purfe. 414 
Saee v. Prefcot. 245 
Sneyd v. Sneyd. 442 
Southcote and Harrifon. 528 
Sparret v. Spiller. 105 
Stanley v. Stanley. 455 
Stanley v. Stanley. 549 
Stapilton v. Stapilton. 2 
Stephens (Do&or) and Attorney ge- 
neral. 358 
Steward and Phipps. 285 
Stiles, ex parte. 208 
Stillingfleet and Hayward. 422 
Stitch and Lawfon. . 507 
Suffolk (Earl of) v. Green. 450 
Swadlin and Bower. 294 
fy debotham, ex parte. 146 
Symance v. Tattam. 613 



Tattam and Symance. 
Taylor v. Taylor. 
Taylor and Oliver* 
Terry W Hall, 
t-n—^«, Gould. 



613 
386 

474 

502 

615 



Thomas, ex parte. Page 73 
Thompfon v. Noel. 60 
Thompson, ex parte. 125 
Thompfon and Sir Hugh Smith- 
fon. 520 
Titner, ex parte. ' 136 
Toye and Hmton. 465 
Trap, ex parte. 20$ 
Treblecock's cafe. 63 3 
Turner, ex parte. 97 
Turner, ex parte. 148 
Turner and Chapman. 54 
Turner and Hill. 515 
Twifs v. Mafley. 67 



Van v. Clark. 510 

Voguel, ex parte. 132 

Uthwatt and Bellafis. 426 

W. 

Walker v. Burrows. 93 

Walton, ex parte. 122 

Ward, ex parte. 153 

Ward and Barwell. 260 

Watts and Fawkner et ux\ 405 

Watts and Fawkner. 406 
Wheat (Sir Thomas) and Datchds of 

Marlborough. 454 

White, ex parte. 90 

Whitchurch, ex parte. jg 

Whitchurch, ex parte. 55 

Whitchurch, et aP ex parte. 2 1 o 

Whitton v. RuflcK. 448 

Wigg v. Wigg. 382 

Wilder and Blatch. 420 

Wildman, ex parte. 109 

Williams (Sir John) and Earl of 

Litchfield. 87 

Williamfon, ex parte. 84 

Willis v. Shorral. 474 

Wilfon , ex parte. 152 

Wilfon and Bradfhaw, ex parte. 2 1 8 

Wood and Fry. 445 

Wood, ex parte. 221 

Woodcock v. King. 286 

Wright and Clerk. 1 2 

Wyld v. Lewis. 432 

Y. 

Yoe and Herring. 290 
Tori (Mayor of) v. Pilkington. 282 



N 



D 



E X 



Of 

C A S E S 

Referred to by the NOTE8 

O F T H E 

FIRST VOLUME. 



A. 

ABBOT W Clarke. Page 60 5 
Abbingdon and Prowfe. 502, 

Abncy v. Miller. 
Ackroyd V* Smithfon. 
Ackwortji*. Ackwortlu 
A&on v. Hale. 
Adams and Daniel* 
Adamfon and Heylin. 
Aifcough's (Lady) cafe. 
Akywell and Smith. 
Albany's cafe. 
Albeny and Scott. 
Allan v. Bower. 
Alexander v. Vaughan. 
Allan v. Heber. 
Allan v. Poulton. 
Allan v. Arme. 
Alieyn v. Alieyn. 
AUington and Boteler. 
AUington and Thorndike, 
Ameibury v. Brown. 
Amherft and Bawdes. 
Amoe v. Horner. 
Ancafter v. Tyrconnel. 
Anderfon and Dodfworth. 
Andrews, ex parte. 
Andrews v. Powis. 
Andrews v. Partington. 



414, 480 
619 

427 
617 
a8 1 
458 
286 

475 
386 

*3>499 

82 

420 

388 

.625 

427 

539 
598 
467 

13 
381 

562 
82 
230 
286 
408 



573> 

474f 



4*4: 

49*> 
435* 

551; 



Andrews v. Fulham. 

Andrews v. Emmot. 

Andrews v. Wriglcy. 

Annandale v. Harris. 

Applebee and Edwards. 

Arnold v. Chapman. 

Art is, ex parte. 

Arundel v. Philpot. 

Afhburner v. M acquire. 

Afhdown and Styleman. 

Afhfield v. Afhfield. 

Afhley and Harvey. 

Aftiton'v. Aftuon. 414, 

Aihton and Smith. 

Afhton and Trafford. 

Alkwith v. Chamberlain, 

Afton and Hervey. 

A ft on and Afton. 

Aftley and Evans. 

Aiherton v. Pye. 

Athol (Duke of) and Earl of Derby. 

Athol and Lanoy. 1 j8, 190, 577 

Akinfon v. Maling. 
Atkyns v. Hiccocks. 512, 

Attorney general v. Parker. 
Attorney general v. Scott. 
Attorney general v. Governors of 
Harrow School. 355 

Attorney general and Bayli* 4 1 p 

Attorney general v. Pcarcc. 350 

Attorney 



Page 424 

559> 44i 
463 

333 
423 
619 
251 

563 
508 
386 
46S 

439 
508 

563 
506 
461 

ibid. 

43* 

580 



160 
38i 

355 

ibid. 



I n D E X of Cafes referred to by the Notes. 



Attorney general v. Parkins* Page 

414, 508. 
Attorney genSrsrl v. Milner 1 . 482,5 1 2 
Attorney getfera! v. Day. 499 

Attorney general v. Meyrick. 605. 
Avelyn v. Ward. 424, 414, 383 

Auften and Waugh. 
Aylefburv (Lady ) and Popham. 
Aylct v. feafy. * 

Ayteli v. Harford. 



263 
619 
291 
140 



B. 

BackwelPs cafe. 
Badrick v. Stephens. 
Bagfliaw v. Spencer. 591 
Bagwell v. Dry. 
Bainham v. Manning. 
Baiiies v. Dixon. 
Bain ton v. Ward. 
Baker v. Pritchafd. 
Baker and Richards. 
Baker and Smith 
Ball and Watts. 
Bald were and Roe, 
Baldwin v. Johnfor*. 
Balgney v, Hamilton. 
Ballard v. Crowe* 
Ballam and Juftm. 
Bam field v. Pophamv 
Bam ford v. Baron. 
Bancroft v. Wardour. 
Bank of England ^WGlyn. 
Banks, ex parte. 
Banks v. Mills. 
Banks v. Denfhaw. 
Bannifter and he Maitre. 
Barber and Hcarn. 
Batct v. fitckrord 
Barker v. Vanfomner. 
Barker v. Boucher. 
Barklcy and Jones. 
Barley and Cruiie. 
Barnardiilon and Watkin 

Barnardiflon it. Lingood. 
Barnham v. Phillips. 
B^iwcil v. Ward. 
Bufkerviile v. Bafkerville. 
Bai?Lt v. Bafler. 
Bau'inan v. Roach. 
B.ir-s r. Dandy. 



2l8 

508 

, 593, 6c8 

496 

333 
55* 

405 

450 

471 

560 

606 

9 

495 

59 

i°> 354 

»34 

5^431 

185 

45* 
29 

ico 

55i 

388 

470 

406, 64 

427 
308, 318 

420 

106 

619 

234> 

23S 

3J* 

406 
150 
593, 609 
482 
482 
280 



fon 



Bathurft and Fletcher. 
Batfon, ex parte. 
Batfon v. Lindegreen 
Baudier, ex parte. 
Baugh v. Read. 
Bawdes tind Amherft. 
Baxter and Lifter. 
Baylis v. Attorney general. 
Bayley and Semphill. 
Beale and Jones. 
Beane aW Jthel* 
Beard v. Beard. 
Bcafely and Welford. 
Beauclerk v. Mead. 
Beaufort and Roy. 
Beaumont v. Thorpe. 
Beaumont and Villers 
Beck t/. Welfli. 
Bedford and Cax. 
Belcher and Green. 
Bell v. Stathara. 
Bellafis v. Ermine. 
Bettafis v. Uthwatt. 427, 
Behon, ex parte. 
Belitha and Cox. 
Benger «. Drew. 
Bennet and Thomas. 
Bennet and Newton. 
Bennet and Rofewell. 
Bennet v. Honywood. 
Bennet v. Vade. 
Bennet, ex parte. 77 

Bennett and CockuHot* 
Benfon v. Benfon. 
Bernard and Sprange. 
Berrisford and Like. 
Bertie and Falkland. 
Beverley v. Beverley. 
Bevis and Whitchurch. 
Bickham v. Freeman. 
Biddulph and Shelburne. 
Bigglefton v. Grubb. 
Bill v. Kynafton. 
Billon v.Hyde. 158, 

Bingham and Wheeler. 
Bingley v. Maddifon. 
Birch v. Blagrave. 
Bird v. Sedgwick. 
Bird v. Hardwicke. 
Birket v. Jenkins. 
Uifcoe and Hyltoit. 
Biflion v. Webiler. 



*34> 



Page 25 1 

160, 225 

420 

5* 

427 

'J 

*35 

410 

38t 
469 
463 
271 

*3 
573 
4«9 

«5 
625 

* 9 

469 

55i 
424 
381 
510,573 
251 
401, 64 

269 

41a 
427' 
46<> 
630 

icfc 
12 

470 
190 

3»' 

59* 

5 

427. 

471 

381 

73« '*& 

62s 

8a 

539 

249 
190 

62 

Bifhop 



474 



185 



Index of Cafes referred toby the Notes. 



j*Hhop v. Church. Page 90 

jji&op of London and Hill. 470 

plackborn v. Edgley. 432 

Jjlackwood and Cathcart. 2 14 



B iakc v. Blake. 

%kt and Duncalfc. 

b laod v. Bland. 

b Iandford v. Footc. 

Bradford v. Malboro'. 
lanfrey and Sarth. 

filankenhufen, ex parte. 

Blatchv/ Wilder. 

Blctfoe and Carter. 

Bictfoe v. Sawyer. 

BKflet and Chapman. 

Blois v. Blois. 

Blount v. Winter. 
Blundel v. Barker. 
Boas and Holliday. 
Bodington and Witts. 
Boehm and Trafford. 
Bond, ex parte* 
Bond v. Brown. 
Bonny v. Ridgard. 
Bookey and Randall. 
Booth and Whale. 
Bofville v. Brander. 
Bofville ^/w/Nealthy. 
Border v. AUington, 
Bourn and Tudway. 
Bouverie v. Prentice. 
Bowaterv. Ellis. 
Bowen and Parry. 
Bower and Allan. 
Bowers and Fearon. 



539 
470 
140 
562 

5<*3 

JO© 

482 
482 
271 
589 

427 
272 
10, 64, 401 
461 
427 

5»3>i* 
106 

482 

463 
619 
463 

193 

589 

539> 474 
477 
598 

59' 
509 

499' '3 
251 



Bowes and Countefs of Strathmore. 

267 

Bowes, ex parte. 605 

Boycot v. Cotton. 5 1 2, 482 

Boyl and Graves. 427 

Brabant and Doo. 424. 
Brace v.Duchefs of Malborough. 520. 

Bracken am/Tunftali. 502 

Bradford v. Foley. 424 

Bradley v. Powell. 482 

Bradihaw and Key. 287 

Brady and Sumner. ic6 

Bradyl v. Ball. 103 

Bragington tfWSamfon. 235 

Braxnhall v. Crofs. 263 

Brafc and Pitcairne. 410 

Brcft v. Offijr« 470 



Bridgman v. Dove. Page 467 

Bridgwater v. Boulton. 6c6 
Bridgwater (Duke of ) v. Edwards. 

59° 

Brighton v. Norton. 504 

Briltol v. Hungcrford. 619 

Broadway v. Moucraft. 304 

Brockhurft and Whitbread. 54 

Brome v. Barkfcy. 549 

Bromly v. Hammond. 300 

Bromeley v. Frazcr. 281 

Bromley v. Child. 79 

Bromley and Smith. 106 
Bromley v. Goodere. 151, 220, 242, 

*4S 

Brooks and Starkey. 619 

Brcmghton and Hill. -g 

Brown, ex parte. 118 

Brown v. Chapman. 145 

Brown v. Jones. 158, 419 

Brown vl Hcathcote 158 

Brown v. Vermuden. 283 

Brown and Richards. 340, 351 

Brown and Delpraine. 354 

Brown and Amefbury. 467 

Brown and Williams. 580 

Browndon v. Winter. 414 

Brownfword v. Edwards. 545 

Bruen v. Bruen. 427 

Brunfden v. Woolrige. 469 

Buckland and Hawker. 420 

Buckley v. Taylor. 103 

Buckn.il a? id Roiflon. 168 

Bufrar v. Bradford. 495 

Buggins v. Yates. 470 

Bullock v. Stone. x 424 

Burchett i-. Goodfellow. 427 

Burk v. Brown. 1 

Burnaby, ex parte. 1,33 

Burnell and Walker. 187 

Burrel, ex parte. 228 

Burroughs and Walker. 15, 268, 

625 

Burrows and Morris. 64 

Burton, ex parte* 1 c6 

Bur well v. Corrant. 420 

B ury and Peyton. 381 

Bulhnan v. Pells. 1 93 

B'jffy and Hodfon. 286, 430 

Butler and Davidfon. 263 

Butler and Collins. 281 

Butler v. Butler. 408, 5 z 5 

Butler 



Index of Cafes rtferred by the Notes. 



Butler v. Duncomb. Page 549 

Butler v. Stratton. 469 

Butterfield v. Butterfield. 286, 43° 

Buxton v. Snee. 234 

Bydc v. Byde. 427 



Cadell and Mace. 1/5 

Calcot ex parte. 208 

Calladon and Hurdret. 282 

Calthorpe v. Gough. 12 
Campbell a;/</EaiVlndia Company. 7, 

53> 539 

Campbell and Kitchen. 128 

Campbell v. Campbell. 493 

Capel's Cafe. 9 

Capot, ex parte. 7 7 » ! 5 3 

Car v. F.llifon. 3 86 * 3 88 

Car v. Bedford. 4 69 

Cart v. Rces. 45 s 

Cafew ami Phillips- 57 l 

Carey v. Goodlftgfl 4<5 1 

Carlton and Lowther. 571 

Carmichael and Wilkins. 234 

Carpenter*-. Carpenter. 59 ! >474 

Carter v. Bletfoc. 482 

Carter W Sharp. 539 
Carter WHall. 54 8 >55 I >5 6 ° 

Caruthcrs, tx parte. 134 
Cart wight and Hebblethwaite. 548 

Caryl and Wheeler. 1 90 

Carwrick and Tait. 263 

Calbornc v. Inglis. 609 

Cafe/iWFalkner. 185 

Cafwell, ex parte. 388, 441 

CtdPEttt v. Blackwood. 214 

paufefidd and Lake. 627 

Chalcroft and Tapper. 427 

Challis v. Cafborn. 420 

Chamberlain and Afkwith. 4 6 1 

Chambury and Holder. 598 

Champcrnoon W North. 591, 474 

Champion, ex parte. 7 5 
Chandos ( Duke of) v. Talbot. 5 1 2 
Chandos (Duke of) and Lyons. 548 

Chaplin v. Horner. 12 

Chaplin v. Chaplin. 606 

Chapmi n v. Pickerfgill. 145 

Chvfinzn and Brown. 145 

Chapman v. Hart. 180 



Chapman v. Gibfon. Page 388 

Chapman v. Salt. 427 

Chapman and P ichardfon. 470 

Chapman and Peat. 496 

Chapman and Bliflct. 589 

Chapman and Arnold. 619 

ChaL and Lewis* 106 
Chatham ^Larl of) v. Totliill. 286, 

430 

Chauncey v. Graydon. 381 

Chauncey v. Tahourden. 539, 451 

Cheney v. Hall. 9 

Chee!o and Stapleton. 482 

Cheney at.d Picrpoint. 549 

Chcfiyn <W Crefwcll. 4^6 

Cheitcrfieldv. Janfen. 10, 106 

Chetwynd v. Lirulon. 539 

Chichdtcr and Raw. 480 

Chilcot v. LCquefne. 64 

Child and Dromeiy. 79 

C Kitty v. Sclw n. 548 

Chorn ley's Cafe 9 

Church and Bifhop. 90 

Churchman v. Harvey t 549, 563 

Civil v. Rich. 406 

Clare, ex parte. 234 

Clarke and Poore. 282 3 

Clark and Montgomery. $80 

Clark v. Sewell. 427 

Clarke v. Danvers. 385 

Clarke v. Periam. 276 

Clarke and Field. 461 

Clarke and Van. 482* 552 

Clarke v. Abbot. 605 

Clavering v. Clavering. 625 

Clay and Pring. 495 

Cleaver v. Spurling. 404, 407 

CIe*vrr v. Powel. 427 

Cliabrd and Smith. 571 

Clifton v. Lombe. 470 

Clowdfley v. Pclham. 47a 

Cockfhot v. Bennet. 106 
Codrington and Williamfon. 625 

Coe and Rich. 234 

Cole v. Gibfon. 10 

Cole and Rex. 1 46 

Cole and Levingfton. 58Q 

Coleman and Gardener. 230, 234 

Collet v. Jaques. 598 

Collier and Elliot. 403, 458 

Collens *• Butler* 281 

Colkiit 



Index of Cafes referred to by the Notes. 



Collins om/Sherman. P. 383,48 2,502 


Crowther and Tawny. 


Page 13 


Cofletta/w/Loyd. 


12 


Crowe and Ballard. 


354> 10 


Colmay v. Sorrel. 


**S 


Crufe and Barley. 


619 


Cohill and Parker. 


94, 190 


Cud more and Symonds. 


5 


Condon and Lowther. 


502 


Cunliffe v. CunliflFe. 


470, 46$ 


Coningham v. Mellifh. 


619 


Cunningham v. Moody. 


12 


Conway v. Conway. 


549 


Curtis and Johnibn. 


1 


Conway and Walpole. 


4*7 


Curtis v. Curtis. 


5*5 


Cook, ex parte. 


68 


Curtis v. Pincke. 


12 


Cook and Page. 


454 


Cuthbert v. Peacock. 


427 


Cook v. Ducken field. 


619, 560 


Cutterback v. Smith. 


420 


Cook and Smith. 


43 » 






Cookfon and Eilifon. 


4*7 


D. 




Cooper v. Chitty. 


77 






CopdanJ, ex parte. 


98 


Dailey v. Defbouverie* 


3 8l >375 


Copley v. Copley. 


4*7 


Dalt and Waller. 


3* 


Corbet and Snellbn. 


441 


Dand and Hodgfon. 


464 


Corbet and Ewer. 


463 


Dandy and Bates. 


280 


Cork, ex parte. 


120 


Daniel v. Adams. 


617 


Corneforch v. Geer. 


* 64 


Danfey and Ravenhill. 


- 549 


Corn wallis (Lord) and Lafcells. 464 


Danvers and Clarke. 


3*5 


Corrant and Burwell. 


420 


D'aquila v. Lambert. 


23+ 


Corry v. Corry. 


IO 


Darrel v. Whitchot. 


480 


Cotter v. Layer. 


5*3 


Davers v. Dawes. 


454 


Cotterel v. Hooke. 


251 


Davidfon v. Butler. 


263 


, Cottle and Young. 


625 


Davies and Farmer. 


»34 


■ Cotton v. Cotton. 


573 


Davy v. Davy. 


59* 


Cotton and Boycot. 


512,482 


Daw v. Pitt. 


286, 480 


Cotton v. King. 


267 


Dawfon ahdSdhs. 


»6j 


Coventry aw/ Tweedale. 


487 


Day and Attorney general. 


499 


Coventry v. Coventry. 


5 6 3'577 


Day and Trig. 


560 


Cox v. Belitha. 


401, 64 


Dean v. Lord Delaware. 


406 


Cox v. Foley. 


598 


Debeze v. Mann. 


427 


Coyfegame, ex parte. 


280 


Dedirc and Freemouk. 


420 


Craddock v. Marih. 


282 


Deeze, ex parte. 


234. 237 


Crane v. Drake. 


463 


Defreiz and Ifaac. 


469 


Craven v. Tickell. 


15 1 


Deg v. Deg. 


59, 420 


• Craven v. Widdowi. 


224 


Dehew and Saunders. 


475 


Craven v. Knight. 


225 


Deloraine v. Brown. 


354 


Cray v. Rooke. 


*94> 333 


Derby (Earl of) v. Duke of Athol. 


Creagh v. Wilfon. 


38' 




53.45 1 


Crcfpigny * . Wittennoon. 
Creffett v. Mytton. 


182 
283 


rrrrr/ T^ifhnn nf^lnrlnr —m'' 1M**** 




53>45* 


Crefwick v. Crefwick. 


16 


Defbouverie and Pufy. 


64 


Crimes and Wallis. 


39* 


Defcharmes, ex parte. 


10} 


Crinfoz, ex parte. 


109 


De thick and Stevens. 


549 


Crifp v. Perrit. 


*33 


Devefe v. Pontet. 


427 


' Crockat v. Crockat. 


508 


Devins, ex parte. 


103, 104 


1 Crofs ami Bramhall. 


263 


Devonfhire and Lcflie. 


6l9 


L Cboffing v. Scudaraorc. 


8 


Dick, ex parte. 


55 


1 ^ rf 7 lr ' Cjarc - 


469 


Dickenfon and Hod. 


286 


I Ctvwder 9 ex parte. 


68 


Digby v. Legard. 


619 


1 L 




a 


I&ltffr 



I N D E X of Cafes referred to by the Notes. 



Dijrge's Cafe. 
Dighton and Lane, 
Dixon and Baines. 
pod v. Dickenfon. 
Dodfon v. Hay. 
Dodfworth v. Anderfon. 
Doc v. Brabant. 
Doc v. Milborne. 
Doe v, Morgan. 
Doc v. Proffer. 
Doc v. Routledge. 
Doncrail (Lord and Lady's) 
Donc's cafe. 
Dorr v. Geary. 
Dormer v. Fortefcuc. 
Dorvilliers, ex parte. 
Dove and firidgman. 
Doughty and Blount. 
Dovding and Ridout. 
Downes and Trod. 
Downman's Cafe. 
Dowfet v. Sweet. 
Drake and Crane. 
Drakefordv.Wilks. 
Drew a/;</Benger. 
Drew and Walter. 
Drlnkwater r. Falconer. 
Dry tf/jrf Bagwell. 
Duchaire find Jickfon. 
Duckenfield and Cooke. 
Dudley andVfzrd. 
Duffield v. Smith. 
Dufrcfnoy and Grofs. 
Duke and Jervois. 
Dumas, /* parte. 
Duncalfe v. Blake. 
Dunch and Hall. 
Duncomb and Butler. 
Durnford v. Lane. 
Durour v. Motteux. 
Dyer v. Dyer. 

E. 



cafe 



Page 4"6 
59 

286, 430 
50 x 
82 
424 
566 
589 

493 
625 

276 

435» 414 

45'. 5^5 
153, 220 

467 

29+ 

192 

406, 609 

7 

495 

-J63 

292,448 

385 
589 

414, 508 
496 
106 

619, 560 

577 

4'-7 

68 

,38i 

175. 230 

539 

606 

549 

, 7 
617 

385 



Ealcs v. England. 
Earl <j//</Scnhoufe. 
Eaft India Company, 



470 

r, , 59 

Campbell. 

haft and J ohtte. 400 

Eaft India Company v. Sandys. 284 
Eaft India Company v. Interlopers. 

284 



Edge v. iScattergood. 

Edge v. Salifbury. 

Edgell v. Haywood. 

Edgley v. Blackborn. 

Edwards and Brownfword. 

Edwards v. Harbcn . 

Edwards and Warwick. 

Edwards and Hume. 

Edwards v. Applebcc. 

Edwards v. Slater. 

Edwards v. Lewis. 

Edwards and Duke of Bridgewater. 

Effingham (Lady) 

fmouth. 
Egerton rtw/Head. 
Elliot and Collier. 
Elliot v. Mrrriman. 
Ellis and Langford. 
Ellis, ex parte. 
Ellis v. Hunt. 
Ellifon and Car. 
Ellifon v. Cookfon. 
Elton v. Elton. 
Elly and Bowatcr. 
Emery, ex parte. 
Ernes v. Hancock. 
Em mot and Andrews. 
Epfom v. Shacklcton. 
Ermine and Bellafis. 
Erving <u* Peters. 
Evans and Smith. 
Evans v. Aftlcy. 
Evans and Thornhiil. 
Evelyn and Stonehoufe 
Evelyn v. Evelyn. 4*7>549>5S«>577 
Evelyn v. Templar. 94 

Ewer v. Corbet. 463 

Eyre's Cafe. 12 



Page 424 
469 

437 

43* 

539* 54 

i8 S 

12,269 

406, 403 

423 

47* 

480 



and Lord Port- 

52 
168 

403, 406,458 

463 
140 

*59> 
249 

386, 388 

4^7 
381, 502 

59* 
234 

383, 502 

SS9> 44i 

493 

ap4 
• 548 
43* 
3<>4 
619 



Fairclaim v. Shacklcton. 
Falconer and Drinkwater. 
Falkland and Bertie. 
Falkner v. Cafe. 
FalkneraW Jeacock. 
Farmer v. Davies. 
Farmer and Green. 
Farnham v. Phillips. 
Farr v. Newman* 



493 
4i4i5°8 

3«i 
185 

427 

*3°**37. 

4*t 
Faufltt 



I HP EX of Cafes referred to by the Notes. 



Fauffet and Whitfield. 
Fawcet and T anker villc. 
Fearon v. Bower. 
FentfWWelland. 
Fellows and Smith. 
Fcnton and Trueman. . 
FideU and Huffey. 
Field v. Clarke. 



Pa S* 335 

577 

2 5 I 
4 6l 
402 
I06 
128 
461 



Finch v. Earl of Winchelfea. 1 3 
Finch v. Finch. 53, 417 

FiQier v. Wigg. 493 

Fifher v. Proffer. 493 

Fitzerv. Fitzer. 15 

Fitzgerald v. Fauconberg. 571 

Flarty v. Odium. 214 

Fletcher v. Bathurft. 251 

Fletcher and Hare. 560 

Flintum, ex parte. 98 

Flournois, ex parte. 234. 

Floyer ^W Williams. 627 

Foley an d B rad ford . 424 

Foley and Lingon. 55 ' 

Foley and Cox. 598 
Fonnereau v. Fonncreau. 424* 512, 

5°*>SSS 

Foote and Blandford. 1 40 

Ford v. Peering. 43'» S 2 

Ford v. Grey. j 90 

Ford v. Fleming. 508 

Forefight v. Grant. 427 

Forfter z/. Forfter. 525 
Fortefcue and Dormer. 525 , 45 1 

Fothergill v. Fothergill. 563 

Fotherby and Wankford. 1 3 

Fox v. Fox. 461 

Foy and Hutchings. 502 

Frazer and Bromley. 281 

Freeman and Moore. 271 
Freeman and Bickham. ' 420 

Freeman and Parfons. 606 

Freemoult v. Dedire. 420 

French and Grimes. 6, 355 

French v. Fen. 229 

French and Smith. 617 

Frewen v. Relfe. 495 

Fry v. Porter. 381 

Fryer v. Flood. 95 

Falham and Andrews. 424 

Fnrzo and Godfrey. 234 

Fydd, ex parte. * 83 
Fyttbe and Bilhop of London. 539 



G. 

Galton v. Hancock. P. 421, 505, 577 

Garbut v. Hilton. 381, 502 

Gardiner v. Coleman. 230, 234 

Gardiner and Knotsford. 560 

Garnet andPicrton. 470 

Garrat v. Prittey. 381 

Garth and Phillips. 469 

Garvan and Roach. 408 
Garway and City of London. 619 

Gafkin v. Gafkin. 493 

Geary and Door. 435, 414 

Geer and Corneforth. 64 

Gerrard v. Gerrard. 548 

Gibfon and Cole. 10 

Gibfon v. Rogers. 551 

Gibfon and Chapman. 388 

Gilbert and Ivy. 55 1 , 506 

Gilpin's Cafe. 42a 

Gilbert v. Witty. 580 

Girling v. Lee. 420 

Gillet v. Wray. 381 

Gitters and Troughton. 77 

Glyn and Harding. 466 

Glyn v. Bank of England. 29, 493 

Godfrey v. Watfon. 80 

Godfrey v. Furzo. 234 

Godwin v. Munday. 502 

Godwyn v. Winfmore. 586, 604 
Goodere and Bromley. 15 1, 220, 242, 

2 45 

Goodfellow v. Burchett. 427 

Goodinge and Carey. 46 1 

Goodright v. Mead. 9 

Goodwin v. Goodwill 54 

Gordon v. Raynes. 482 

Gore v. Gore. 424 

j Gough and Calthorpe. 12 

j Gould and Lamego. 350 

j Governors of Harrow School and 

Attorney General. 3^ 

Graydon v. Hicks. ja 1 

\ Graham, ex parte. 222 

Graham v. Londonderry. 272, 441 

Granville and Worfley. 419* 192 

Grant aWFprfight. 427 

Graveuorv. Hallam. 6;q 

Grave v. Earl of Salifbury. 427 

Graves v. Maddifon. 548 

Graves v. Boyl. 427 

a 2 



Index of Cafes referred to by the Notes. 



Graydon and Chauncey. 
Graydon v. Hicks. 
Greaves v. Powell. 
Green and Suffolk. 
Green v. Farmer. 
Green v. Howard. 
Green and Earl of Suffolk. 
Green v. Belcher. 
Greeubank and Hearle. 
Greenhill v. Greer.hill. 
Grenvlll v* Pollard. 
Greenwood v. Hare. 
Greefe awf/Rkhardfon. 
Gregor v. Molefworth. 
Gregfon and Swift. 
Grey and Ford. 
Grey v. Kentifh. 
Griffith v. Jones. 
Grimes v. French. 
Grimes §md Sirutton. 
Grofs and Dufrefnoy. 
Grotej m parte. 
Gnibb and Blgglefton. 
Gualtier and Rtco* 
Gulliver v. Wicket. 
Guibert v. ReadQiaw. 
Giudotv. Giudot. 
Gurney and Hall. 
Gynes v. Kemfley, 
Gwyne v. Heaton. 

H. 



230 



47* 
631, 



Page&i 

381 
420 

53 

*37 
469 

S3 

609 

573 
563 

3 8 S 
482 

45* 

3 8 9 
190 

*93 

469 

^ 355 

38i 

68 

103 

4-27 
521 
424 

3 6 4» 573 ■ 

160 l 

410 ' 
35' 



Habergham v. Vincent. 
H ilcot v. Markant. 
Hale v. A£on. 
Hale v. Webb. 
Halfpenny and Uvedale. 
Hail and Cheney. 
Hall v. Lumley. 
Hall v. Gurney. 
Hall v. Hall. 
Hull v. Terry. 
Hall v. Carter. 
Hall v. Dunch. 
Hallam aw/ Gravenor. 
H mbling v. Letter* 
Hamilton and Balgney. 
Hammond and RufTell. 
Hammond -and Roach. 
Hanbury v. Hanbury. 



589 
59 

4 2 7 
518 

419 

9 

64 

1 6c 

402 

485* 482 

55^,556,55^548 

606 

619 

508 

59 

93>94 

469 

417 



Hancock W Galton. 577, 42 x, 505 



Hancock and Ernes. 
Hankey, ex parte. 
Hankcy v. Jones*. 
Hankey and Powell. 
Hankey v* Simpfon. 
Harben and Edwards. 
Harboniugh and Sherratd. 
Hardcaftlej w parte. 
Harding v. Gfafc, 
Hardwick ^W Bird- 
Hare <?//</ Greenwood. 
Hare and Fletcher. 
Harford and Aylett. 
Hargrave v. Fmdal, 
Harland v. Tngg. 
Harris and Morgan. 
Harris and Annandale. 
Harris and Whithorne* 
Harrifon v. Southcote# 
Harry v. Perrit. 
Hart and Moore. 
Hart v. Middlehurft. 
Hart and Chapman. 
H<mop v. Whitmore. 
Harvey and Churchman. 
Harvey v. Afhley. 
Harvey v. Afhton. 
Harwood and Jacomb. 
Havergill v. Hare. 
Hawes v. Wyatt. 
Hawker v. Buckland. 
Hawkie and Stribley. 
Hawkins v» Holmes. 
Hawkins t>. Leigh. 
Hawkins and Wynne* 
Haws v. Haws. 
Hay and Dodfon. 
Haydon, ex parte. 
Haylen and Taylor. 
Haynes v. Mico. 
Hayward v. Stillingffcet. 
Hay ward, ex parte. 
Hayward and Spicer. 
Haywood and Sdgell. 
Haywood and Pfcget. 
Head v. Egerton. 
Hearle v. Greenbank. 
Hearn v. Barber. 
Heath v. Perry, 
Heathc v. Hcathe. 
~ WOkc. 



Page 502, 



i*9> 



138, 
466, 



3«3 

75 
too 

1 
185 

619 

62© 

539 
3»S 
560 
140 
4»0 
470 
286 

333 

469 

450. 53 

2S1 

»3 

57* 
180 

427 
5*3» 549 
439> 49° 

381 
4<Si» 463 
7 



6*5 
420 

544 

'3 

386 

470 

493 
501 

9« 
1 

427 
10 

133 

333 

437 

38* 
168 

6of 
406 
4»4> 5°5« 508 
493t 5»» 
38a 
Heathcotc 



64. 



INDEX $f Cafes referred by the Notes. 



Hcathcote and Brown. Page 158 

Heatoh and Gwyn. 35 1 

Hebblethaite w. Cartwright. 548 

Hcber and Allan. 420 

Hcmmings v. Munkley. 381, 502 



Herbert v. Lord Tcynham. 

Hereford and Tracy, 

Hearn v. Hearn. 

Heron v. Heron. 

Hcrvey and Afhley. 

Hervey and Metcalfe. 

Heurtley and Stone 3. 

Hewit v. Mantel. 

Heylin and Prince. 

Heylyn v. Adamfon. 

Hiccocks and Atkyns. 

Hicks and Graydon. 

Hickfon v. Whkham. 

Hill v. Broughton. 

Hill v. Spencer. 

Hill and Pryor. 

Hill v. Turner. 

Hill v. Bifhop of London* 
Hills v. Whirley 
Hilton 6/o/Garbut. 
Hinton v. Pincke. 
Hobart v. Suffolk. 
Hodgfon v. Rawfon. 
Hodgfon, ex parte. 
Hodgfon and Smith. 
Hodgfon v. Bufley. 
Hodgfon v. Dand. 
Hody v. Lun. 
Holder v. Chambury, 
Hole v. Thomas. 
Hold ford and Wright. 
Holliday t>. Boas. 
Holmes v. Holmes. 
Holmes v. Meynel. 
Holt v. Holt. 
Honeywood and Bennett. 
Honey wood v. S el win. 
Hooke and May. 
Hooke and CottereL 
Hope and Tyrrell. 
Hopkins and Rudge. 
Hopkins v. Hopkins, 
fiopkinfon, ex parte. 
Horner and Amos. 
Bonier and Chaplin. 
Honey's Cafe. 

> and-Stafford* 



59» 



5'2, 



5°*» 



284 
467 

427 
402 

439 
45' 
493 
89 
496 
281 

38' 

38i 

420 

9 
333 
»93 
491 
470 
382 
381 

4»4 
619 

383 
98 
229 
286, 430 
464 
617 
598 
649 
580 
461 

4*7 
580 
480 
469 

539 
542 
251 

124 
283 

4*4 
*53 
38« 

12 

67, 6* 
4H 



S<>3> 



49°> 



Horton v. Whitaker. 
Hofkins v. Hoikins. 
Holkins and Woodhoufc. 
Hofkins and Paget. 
Howard 'v. Jcmmot. 
Howard and Green. 
Howe v. Howe. 
Howell v. Price. 
Hubert v. Parfons. 
Huey and Skip. 
Huggins v. the York 

Company. 
Hughes v. Hughes. 
Hughes and Oldham. 
Hume v. Edwards. 
Humphrey v. Talcur. 
Hunger ford and Briftol. 
Hunt and Ellis. 
Hunt and Mafon. 
Hurdret v. Calladoa. 
Hurft and Irod. 
Huffey v. Fidell. 
Hutchingsv. Foy* ' 
Hutch infon v. Moulton. 
Hutchinfon v. Hammond. 
Hyde and Billon. 1 58, 

Hyde and Whitchurch. 
Hylton v. Bifcoe. 



4»7> 



?age 424 
427 
614 
464 
162 
469 

385 
577 
555 
294 

Buildings 

45 ' 
408 

573. 54a 
406, 403 

495 
619 
249 
612 
282 

427 
128 
5»2 
41 

o ' 9 

!85» «37 
284 . 
190 



* 



Jackfon v. Duchaire. 
Jackfon v. Lomas. 
Jackfon and Walker. 
Jacob and Lawrence. 
Jacomb v. Harwood. 
Jacques and Collet. 
Janfen and Chefterfield. 
Jeacock v. Faikner. 
Jeale v. Titchner. 
Jeffreys v. Jeffreys. 
Jekyl and Shudal. 
Jekyl ana Williams. 
Jemmct and Howard. 
Jenkins and Birkit. 
Jenkins v. Powell. 
Jennings v* Lpoks. 
Jernegan and Willis. 
Jervois v. Duke. 
Jeffon v. Jeffon. 
Jewke and Sutton. 
Jewfon and Moulfon. 
a 3 



106 

106 

575 
281 

461, 463 

598 
10, 106 

4*7 
502 
414 

4*7 

5 2 5 
102 
249 

427 
482 

*>35i 

381 

427 

3 8 * 
J 93» 280 



Index of Cafes referred to by the Notes. 



Incledon v. Ndrthcotc. 
Inglis and Cafborne. 
Ingres and Pawlet. 
Interlopers and Eaft India 

Johnfon, ex parte. 
Johnfon v. Curtis. 
Johnfon and Baldwin. 
Joliffe v. Eaft. 
Jones v. Morley. 
Jones and Taylor. 
Jones and Lanefborough. 
Jones v. Barkley. 
Jones and Hankey. 
Jones and Brown. 
Jones v. Marfli. 
Jones v. Jones. 
Jones v. Suffolk. 
Jones v. Weftcomb. 
Jones and Griffith. 
Jones v. Be ale. 
Jones v. Nabbs. 
Irod v. Hurft. 
Ifaac v. Defreez. 
Ithel v. Bean. 
Judfon and Nicholls. 
Ives and Metcalfe. 
Ivie v. Ivie. 
Ive and Taner. 
Juftin v. Ballam. 
Juxon and Parry. 
Ivy v. Gilbert. 

K. 

Kampfhire v. Young. 
Keelcy and Winch. . 
Keen v. Stuckley. 
Kempland and Perkins. 
Kemflcy and Gynes. 
Render v. Mil ward. 
Kennegal and Reech. 
Kentifli v. Newman. 
KentUh and Gray. 
Kettier v. Raynes. 
Key v. Bradiliaw. 
Keymifti and Thomas. 
Kinchant v. Kinchant. 
Kinder v. Milward. 
King, ex parte. 
King v. Myers. 



Page 441 
609 
284 

Company. 
284 

83 
1 

495 
493 

l 's 

100 
106 

129,201 

419, 158 

190 

291, 286 

3»< 
424 

469 

469 

470 

4*7 
469 

463 
427 
401 
286 
4^3 

470 

5°7>55i 



64 

124 

12 

251 

410 

59 
448 
192 

*91 

130 
287 

427 

10 

59 
12, I20 

' 58 



King (affignee of Langman) v. Leith 

Page 261 
470 
267 

59 
128 

80 



King v. Lewis. 
King and Cotton. 
Kirk v. Webb. 
Kitchen v. Campbell. 
Knight v. Noyes. 
Knight v. Maclean. 
Knight and Craven. 
Knight v. Norton. 
Knotsford v. Gardiner. 
Knox v. Symmonds. 
Krutzer v. Wilcox. 
Kynafton and Bill. 

L, 



225 

409 

560 

64 

230, 234 

47 * 



158, 190, 



Lacon v. Mertins. 
L*dbroke aWTomkyns* 
Lake v. Caufefield. 
Lambert and D'aquilla. 
Lamego v. Gould. 
Lane and Durnford. 
Lane v* Dighton. 
Lanefborough v. Jones. 
Langford v. Ellis. 
Langford v. Pitt. 
Langley v. Oxford 
Lanoy v. Athol. 
Lant and Ward. 
Lafcelies v. Lord Cornwallis. 
Lavie v. Philips. 
Lawrence v. Jacob. 
Laundie v. Williams. 
Lawfon v. Stitch. 
Lawton v. Lawton. 
Laver and Cotter. 
Laywike v. Shuuleworth. 
Lee, ex parte. 
Lee and Ox ley. ' 
Leach v. Trollop. 
Leeds (Duke of) v. Powell 



73 



13 

64 

627 

*34 

35° 

7 

59 
j 00 

140 

573 
463 
577 
625 

4^4 
206 
281 

556 
414 

477 
563 
300 

,148 
94 
82 
598 



Leeds (Duke of) v. New Radnor 598 
Leeke, ex parte. 102 

Lcfebre, ex parte. . 108 

Legard and Digby. 619 

Legatt and Sewcll. 591 

Le Hook and Mufgravc. 300 

Leigh and Hawkins. 386 

Leith and King. 261 

Le 



INDEX of Cafes referred to by the Notes. 



Lc Maitre v. Bannifter. Page 470 
Lempriere v. Pafley. 160 
Lempfter (Lord) v. Lord Pom- 
fret. 43 l 
Leonard v. Earl of Suffex. 609 
Lequefnc and Chikot. 64 
Lefeburev, Warden. 29 
Lefliev. Devonshire. 6*19 
Lcvingfton and Cole. 5 80 
Lcwellyn, ex parte. 102 
Lewes, ex parte. 15a, 153* 220 
Lcwen v. Okeley. 4 2 ° 
Lewis v. Chafe. 106 
Lewis and Wyld. 4 x 3 
Lewis v. King. 47° 
Lewis and Edwards. 480 
Lewis and Spinks. 6 1 9 
Lickbarrow ti* Mafon. 25 l 
Lidderdale u* Monorofe. 214 
Like -. Rerresford. 19° 
Lindegreen and Batfon. 420 
Lindon and Chetwynd. 539 
Lindfey, ex parte. 153, 220 
Lingard v. Wegg. 2*3 
Lingen v. Sowray. 573 
Lingen v. Foley. 5 5 1 
Lingood and Barnardifton. 3; 1 
Lingood, ex parte. 77 
Lifter and Ambling. 508 
Lifter v. Baxter. 234, 235 
Litchford v. Oldham. 447 
Littleton and Wynn. 605 
Litton v. Ruflcl. 605 
Lock and Twifdcn. 580 
Lockyer v. Savage. 64, 40 1 
Logan and M'Adam. 4^3 
Lomas and Jackfon. 1 06 
Lombe «ptf Clifton. 47° 
London (Bifliop of) v. Fytche 539 

and Hitt. 47° 

London (City of) 7;. Garway. 619 

Londonderry and Graham. 272, 44 1 

Long and Reeve. 589 

Looks and Jennings. 4^2 

Lowe v. Waller. J 2<> 

Lowtherv. Condon. 502 

Lowther v. Carlton. 5 7 1 

Loyd v. Collctt. 1 2 
Loyd v. Spiilct. 404> 60, 1-3 

toydt,. Tench.- 454 

Lomiey and Halt. 64 

iWHody. 617 



Lutwidge and Wilkinfon. Page ft 1 2 
Lyndon and Maflareene. 39^ 

Lyons v. Duke of Chandog. 548 



M. 
Mace v. Cadell. 
Macklin, ex parte. 
Maclean and Knight. 
Macguire and Aihburner. 
M'Adam v. Logan. 
Maddifon and Bingley. 
Maddifon and Graves. 



I7> 

150 

80 

414 

5 6 3 

73> 126 
548 



Malborough (Dutchefs of) and Brace 

520 

Malboro^iWBlandford. 562 

Maling um/Atkinfon. 100 

Malbbarv. Mallabar. 619 

Man v* Man 496 

Man and Debeze. 427 

Manning and Bainham. 333 

Manfell v. Manfell. 381 

Mansfield and Phipard. 5B0 

Mantill and Hewit. . £9 

Markant and Halcot. 59 

Marks v. Marks. 57 c. 

Marlar, ex parte. 80. 245 

Mzxhr and Worral. 193 

Marlen, ex parte. 133 

Mario w and Middlecome. 15. 190 

Marlow v. Smith. 605 

Marry at v. Town ley. 580 

Marriot and T after. 480 

Marfh and > 1 2 

Marfh, ex parte. 100. 190 

Marfh and Jones. 190 

Mar ill and Craddock. 282 

Martin and Strachan. 9 

Martin v* O'Hara. 138, 253 
Martin and Reynifh. 485, 512, 381 

Mafcall and Norton. 62 

Mafon and Lickbarrow. 2? 1 

' Mafon v. Hunt. 

i Maflareene v. Lyndon. 
Ma (ley and Twifs. 
MafTey v. Sherman. 

Mathews, ex parte. 1 09, 

May v. Hook. 49 
Mayor of York v. Pilkington. 
Mead and Good right. 
Mead v. Lord Orrery. 
Mead and lkaucleik. 
a 4 



612 

68 

J70 

» *S9 
i542 

2*5 

9 
461,463 

573 
Mea-ei* 



I K D I X sf Cafes referred to by the Notes* 



Meager and Walker. Page 420 

Medlicot's cafe. 148 

Mellifh and Coningham. 

Mergrave v. Le Hooke. 

Merriman and Elliot. 

Mertins and Lacon. 

Metcalfe v. Tves. 

Metcalfe v. Harvey. 

Meymot, ex parte. 

Meynil and Holmes. 

Mcyrick and Attorney General 



619 

300 

*3 
401 

45* 

146 

580 
605 
120 

427 
IS* '9° 

S7i 



1*4 



Michell, ex parte. 
Mico and Haynes. 
Middlecome v. Marlow 
Middlehurfl anq[ Hart. 

Middleton v. Onflow. 351 

Milbofne and Doe. 566 

Milbourn v. Milbourn. 386 

Miller and Abney . 4 ! 4 

Mills v. Banks. 551 
Milner and Attorney General. 482 

Milnerv. Mills. 573 

Mil ward and Kender. 59 

M itchell, ex parte. 114,120 

Mitford, ex parte. 1 1 8 
vl Featherftonehaugh. 304 



Molefworth and Gregor. 
Monk and Peacock. 
Monk v. Morris. 
Montacute v. Maxwell. 
Montgomery v. Clark. 
Montr ofe and Lidderdale. 
Moody and Cunningham. 
Moody v. Moody. 
Moore v. Hart. 
Moore v. Moore. 
Moore and Stokes. 
Moore v. Freeman. 
Moore v. Rycaulr. 
Moore and Poliexfen. 
Morecroft and Broadway. 
Morgan v. Harris. 
Morgan and Powell. 
Morgan and Rick man, 
Morgan and Probcrt. 
Morgan and Doc. 
Morley and Jones, 
Morret v. Paikj. 
Morris v. Burroughs. 
Morris, ex p >tte. 
Morris and Underwood* 



451,631 
29 
263 

13 
286 

ai4 
12 

9 

. *3 

180 

13 

271 
190 
► 191 
3 C 4 
286 

.4C4 
427 
559 
5^ 
7 
520 

64 

75 
384 



573 



59 1 



Morris and Pi^got. 
Mode v. Wiifon. 
Mortlock and Peterboro*. 
Mofeley v. Moieley. 
Motteux v. Durour. 
Moulfon and Jewfon. 
Moulton v. Hutchinfon. 
Mowbray and Rayner. 
Moyfe v. Gyles. 
Mouckley and Hammings. 
Munday and Godwyn. 
Myers and King. 
Mytton and Creffett. 

N. 

Nabbs/iw/ Jones. 
Naiili and Tourviile. 
Nealc <vWSeagood. 
Ncalthy v. Bofville. 
Negus v. Reynal. 
Newland ana Rerefby. 
Newman and Kentim. 
Newman v. Newman. 
Newman and Farr. 
Newport and Smith. 
New Radnor and The Duke 

Newton v. Bennet. 
Nicholls v. J vcllon* 
Niflens and Salomons. 
Nockold, ex parte. 
Norgatc v. Ponder. 
North v. Champernoon. 
North v. Strafford. 
Northcote and Incledon. 
Northey v. Northey. 
Norton v. Mai call. 
Norton and Brighton. 
Norton and Whalcy. 
Norton a<:d Knight. 
Nowlan v. Nt^ligan. 
Noyes and Kuapp. 

0. # 



Page 381 

35° 

414 
404 

619 
193, 280 

441 
469 

*7i 

381,502 

502 

383 



470 
384 

"3 
589 

190 

549 
192 
426 

463 

425 
of Leeds. 

598 

43 • 

427 

251 

9' 

64 

474 
598 

441 

441 

62 



59'» 



504 

333 
419 

470 
381 



Oakley v. Smith. 


54* 


Oke v. Heath. 


382 


OcLenden, ex parte. 


j 2 8, 230 


Odium and K forty. 


214 




Offley 



I N D £ x of Cafes referred to by the Notes. 



Offley v. Offley. 


Page 269 


Offley and Breft. 


470 


O'Hara and Martin* 


*3 8 > 2 53 


Okcley and Lewin. 


420 


Okenden v. Okenden. 


506 


Oldham v. Lichford. 


447 


Oldham v. Hughes* 


573» 54* 


Olive and Stephens* 


*5 


Oidknow, ex parte. 


9 S 


Onflow and Middleton* 


35* 


Orme v. Smith* 


508 


Orrdry (Ljid) an d Mead* 


461 


OiTuliton v. Yarmouth. 


304 


Oadley and Small* 


162 


Ouftl, ex parte. 


2 ?4 


Owen v. Williams. 


480 


Owen v. Owen. 


493 


Ox/ord and Langley. 


46i 


Oxiey v. Lee. 


94 


P. 




Page, ex partem 


9 8 


Page v. Cook. 


45*- 


Page v. Page. 


496 


Paget v. Haywood, 


3** 


Pa^er and Wade. 


563 


Paget v. ilofkins. 


464 


Pain and Riciout. 


64 


Palling and Stead man. 


5*2 


Palmer v. Scribb. 


470 


Parker and Colville. 


94, 190 



Parker and Attorney General. 355 
Parkins and A:torney General 414 

Pariy v. Ju\oil. 470 

Parry v. B*>*ren. 569 

Parry v. Rogers. 571 

Parfons and Zouch. 490 

Parfons and Hubert. 555 

Parfons v. Freeman. 606 

Partington and Andrews. 408 
Partridge v. Partridge. 414. 508 

Pafke and Morrett. 520 

Pafley and Lempnere. 1 60 

P.» wlet and Ingrefs, 284 

Pawlct v. Pa wlet. 482 

Pay's cafe. 424 

Payne and Stratton. 286 

Peacock v. Monk. 29 

Peacock and Cuthbcrt* 4*7 

Peat and Tittetfon. 64 

Feat v. Chapman, 496 



Peering and Ford. Page 5 j, 431 

Pelham and Clowdfley. 470 

Pells and Bum nam. 193 

Perkins v. Kempland. 251 
Perkins and Walker. 334, 606 

Perrit and Crifp. 133 

PeTrit and Harry. 28 c 
Perry and Heath. 414, 505, 508 

Perry v. White. 580 

Petcrboro' v. Mortlock. 414 

Peter v. Ruflell. 16*9 

Peyton v. Bury. 381 

Phillips v. Thompfon. 1 28 

Phillips and Barnham. 406 

Philips and Lavie. 206 

Phillips v. Garth. 469 

Phillips v. Carew. 571 

Philpot and Arundel 563 

Phipard v. Mansfield. 580 

Phittiplace and Yates. 48* 

Pickering v. Vowles. 480 

Pickerfgill and Chapman. 14J 

Pierpoint and Lord Cheney. 549 

Pierfon v. Garnet. 470 

Piggot v. Morris. 381 

Pigottv. Penrice. 563 

Pike v. White. 388 
Pilkington and Mayor of York. 285 

Pine, ex parte. 228 

Pink and Hinton. 414 

Pitcairne v. Brafe. 410 

Pitt and Daw. 286 

Pittam/Langford. 573 

Plummer , ex parte. 102 

Plunket v. Penfon. 420 

Podger's (Margaret) cafe. 474 

Pollard v. Grenville. 563 
Pollexfen v. Moore. I 9°>573 
Pomfret (Lord) and Lord Lempfter 

43 1 

Ponder and Norgate. 64 

Pontet and Devefe. 427 

Poore v. Clarke. 283 

Popham and Bamfield. 43**589 

Popham v. Lady Aylefbury. 619 
Poreau and Rakes. 1 95 

Porter and Fry. 381 

Portfmouth v Lord) v. Lady Effing* 
ham. 5 2 

Potter v. Potter. 499*573 

Poulton and Allen, 388 

Powell 



INDEX of Cafes referred to by the Notes* 



Powell v. Hankey. 


Page 269 


Powell v. Morgan. 


591,404 


Powell and Greaves. 


420 


Powell and Jenkins. 


4*7 


Powell and Cleaver. 


427 


Powell and Bradley. 


482 



Powell and Duke of Leeds. 598 

Powis and Andrews. 286 

Prentice and Bouveric. 598 
Price and Howell. 487, 577 

Prime *nd Silk. 420 

Prince v. Heylin. 496 

Pring v. Clay. 495 

Pritchard and Baker. 450 

Prittey and Garratt. 381 

Proffer and Doe. 493 

Probert v. Morgan. 559 

Proudfoot, ex parte. 1 38 

Pryor v. Hill. 193 
Puget and Targus. • 192 

Pugh v. Smith. 404 
Pullen v. Ready. 573, 10, 381 

Purefoy v. Purefoy. 300 

Purfe v. Snaplin. 508 

Pufy v. Defbouverie, 64 

Pye and Atherton. 580 



R. 

Raikcs v. Poreau. 
Ramkificnfcat v. Barker 
Rand and Tourl. 
Randall v. Bookey. 
Ravenhill v. Danfey. 
Raw v. Chicheftcr. 
Rawfon and Hodgfon. 
Ray v. Stanhope 
Rayner v. Mowbray. 
Raynes and Kettier. 
Raynes and Corden. 
Read v. Snell. 64, 

Read and Baugh. 
Read and Smith. 
Reading v. Royfton. 
Readfhawrfm/ Guibert. 
Ready and Pullen. 573 

Rccs and Cart 
Reech v. Kennigal. 
Reeve v. Long. 
Relfe and Frewen. 
Rcrciby v. Newland. 



'95 
291 
169 
6x9 

549 
480 

5° 2 > 383 
427 
469 

130 
482 
440, 609 
427 
539 
493 
S47 
381, 10 

458 
448 
589 

495 
549 



Rex v. Cole. 




Page 145 


Reynall and Negus. 




190 


Reynifh v. Martin. 


38' 


9 4*5*5** 


Rich v, Coe. 




234 


Rich and Civil. 




400 


Rich and Wills. 




461 


Richards v. Brown. 




340,351 


Richards v. Baker. 




47i 



Richardfon v. Greefe. 427, 482, 5 12 

Richardfon v. Chapman. 470 

Rickman v. Morgan. 427 

Rico v. Gualtier, 421 

Rider v. Wager. 508, 606 

Ridgard and Bonny. 463 

Ridout v. Pain. 64 

Ridout v. Dowding. 192 

Rigden v. Vallier. 493 

Rivet v. Watkins. 467 

Roach v. Garvan. 408 

Roach v. Hammond. 469 

Roach and Ba tern an. 482 

Robins and Spinks. 427 

Robinfon v. Robinfon. 432, 589 

Robinfon v. Taylor, 619 

Rock v. Warth. 480 

Roe v. Baldwere. 9 

Rogers and Gibfon. 551 

R ogers and Parry. 571 

Rogers v. Rogers. 6 1 9 

Roifton and Bucknal. 1 68 

Rooke and Cray. 294, 334 

Rooke, ex parte. 151 

Rooke and Warth. 480 

Roome v. Roomc. 427 

Rofewell v. Bennet, 427 

Routlcdge and Watfon. 625, 268 

Row and Wright. 6 i 9 

Rowlandfon, ex parte. 1,00 

Roy *.». Duke of Beaufort. 409 

Rudge v. Hopkins. 283 

Rundle v. Rundle. 38; 

Ruffell v. Hammond. 93 

Ruffell and Peter. 1 69 

Ruflell and Litton. 605 
Rutland's (Countefsof) Cafe. 7 
Ryall v. Rowles. 128, 158, 161, 233 

Rycault and Moore. 190 

Ryfwicke, ex parte. 108, J30 



INDEX of Cafes referred to by the Notes. 



S. 

Salamons v. Niflbn. Page 2Ci 

Salifbury (Earl of ) and Grave. 427 

469 

«53 

427 

286,430, 525 

4*74 

235 
261 

67*97 
548 



Salifbury and Edge, 

Salkeld, ex parte. 

Salt and Chapman. 

Saltern v. Saitern. 

Salvin v. Thornton 

Sam fun v. Bragington. 

Sandby, ex parte. 

Sandon, ex parte. 

Sandys v. Sandys. 

Sandys and Eaft-India Company. 284 



Sanfom and White. 
Sarth v. Blanfrey. 
Saunders v. Dehew. 
Savage and Lockyer. 
SaviU's Cafe. 
Saville v. Saville. 
Sawyer and Bletfoc. 
Scattergood v. Edge. 
Scot v. Tyler. 

Scott and Attorney General. 
Scott v. Alberry. 
Scotton v. Scot ton. 
Scribb and Palmer. 
Scudmore and Crefling. 
Seagood v. Nealc. 
Scale v. Scale. 
Sedgwick and Bird. 
Sellas v. Dawfon. 
Selwin and Honey wood 
Sclwin and Chitty. 
Semphill v. Bayley. 
Senhoufe v. Earl. 
Serge fon it. Sealey. 
Scwel and Clarke. 
Sewell and Legatt. 
Seymore v. Trefilian. 
Shackleton and Epfom. 
Shallct and Ward. 
Shapland v. Smith. 
Sharp v. Carter. 
Shaw v. Stand i(h. 
Shearman v. Shearman. 
Shelburne v. Biddulph. 
Sbeplcy and Woodhoufe 



94 
5<>3 

475 

64 

423, 10 

427*467*548 

271 

424 

381,464 

?55 
386 

427 

470 

8 

J 3 
430, 286 

82 
263 

539 
54 8 

3" 

463 

427 
59* 
441 

. 4>3 
190 

4"4 

539 

*5 

521 

5 
287 



Sherman v. Collins. 383, 482, 502 



Sherman and Mafley. 
SherrardH/. Harboro*. 
Short v. Wood. 
Shudal v. Jekyl. 
Shuttleworth v. Laywick. 
Sidebotham v. Smith. 
Sidney v. Sidney. 
Silk v. Prime. 
Sim pfon , ex parte. 
Simpfon (In the matter of) 

Simpfon v. Hankey. 
Simpfon v. Vaughan. 
Skip v. Huey. 
Skip, ex parte. 

Skip and Weft. 171, 

Shinning v. Stile. 
Slater and Edwards. 
Sleech v. Thorington. 
Small v. Oudley. 
Small v. Wing. 
Smeaton and Weller. 
Smith, ex parte. 82, 

Smith v. Bromley. 
Smith v. Hodgfon. 
Smith v. Akywell. 
Smith /?//// Tendril. 
Smith anil Pugh. 
Smith «y. Fcllowes 
Smith and Cuf terback. 
Smith v. Newport. 
Smith and Duifield. 
Smith v. Cook. 
Smith v. Smith. 
Smith W Ormc, 
Smith v. Read. 
Smith and Okeley. 
Smith v. Evans. 
Smith v. Baker. 
Smith v. Clifford. 
Smith tfWAfhton. 
Smith and Mario w. 
Smith v. French. 
Smithfou and Ackroyd. 
Snaplin and Puxk. 
Snce and Buxton. 
Snee v. Snee. 
Snell and Read. 
Snellen v. Corbet. 



Page 47© 

619 

12 

427 

300 

28l 

272, 276 

4 2 0, 485 

140,222 

68, 97, 

252 

1 

9° 

294 

126 

1S2, 187 

271 

476 

4*4 
162 

5S? 

118,294 
106 
229 

286 
3*6 

4 C 4 

402 
420 

4^5 

.427 

431 

482 
508 

539 

542 
548 
560 

57' 
56? 
6c$ 

«»7 

619 

508 
234 
563 

44* 

Senior 



Index of Cafes referred to by the Notes. 



Sodor and Man (Bifliop of) v. Earl of 
Derby. P"g'S3>45 1 

Somerfet v. Somcrfet. 427 

Sonday's Cafe. 431 

Sorrel and Colnay. 625 

Southby v. Stonehoufc. 431, 560 

Southcote and Harrifon. 450, 53 

Souray and Linger*. 573 

Spencer and Hill. 333 

Spencer and Bagfhaw. 591 

Spicer v. Hay ward. 333 
Spillet and Loyd. 404,60, 191 

Spinks v. Robins. 4*7 

Spinks v. Lewis. 619 

Sprange v. Bernard. 47° 

Spurling and Cleaver. 404 

Spurret v. Spiller. 352, 256 

Stafford and Wilkinfon. 409 

Stadgroom, ex parte* 1 60 

Stafford v. Horton. 414 

Stanhope andlidy. 427 

Staniforth v. Staniforth. 548 

Stanley v. Stanley. 454 

Stapleton v. Stnpleton. 354, 423 

Stapleton v. Chealcs. 482 

Starkey .:«./ Brookes. 619 

Stathatn v. Bell. 4 2 4 

Steadman v. Palling. 5 1 2 

Stephens v. Olive. 15 

Stevens and Badrick. 508 

Stevens v. Dethick. 549 

Stillingfleet v. Hay ward. 10 

Stich and Lawfon. 4 1 4 
St. Luke (PariOi of) v. Parim of St. 

Leonard. 283 

Stokes v. Moore. 1 3 

Stone and York. 626 

Stonehoufc v. Evelyn. 619 

Stones and Bullock. 425 

Stones and Heurtley. 493 

Storey v. Windfor. 493 

Stow, ex parte. $5 

Strachan and Martin. 9 

Strafford and North. 598 

Strahan and YVickes. 67 
Strathmore (Countefs of) v. Bowes. 

267 

Strr.tton *». Payne. 286, 430 

Stratton v. Grimes. 38 1 

StTatton and Butler. 469 

Stribley v. Hawkie. 544 

Stylcman v. A(hdown. 15, 386 



Suffolk v. Green. Page 53,539 

Suffolk and Jones. 3 8 * 

Suffolk and Hobart. 6 19 " 

Summer v. Thorp. 1 

Sumner v. Brady. ic6 

Suffex v. Thomond. 5*8 

Suffex and Leonard. 609 

Sutton v. Jewke. 381 

outton v. Stone. 423 

Swain and Underwood. 383 

Sweet v. Southcott. 571 

Sweet and Dowfet. 495 

Swift v. Gregfon. 389 

Sydcbotham, ex parte. 201 

Symonds v. Ctfdmore. 5 

Symonds and Knox. 64 

T. 

Tahourden and Chauncy. 45^*539 

Tait v. Carwick. 263 

Talbot, ex parte* 140 
Talbot and Duke of Chandos. 51a 

Taner v. Ivie. 463 

Tankcrville v. Fawcct. 577 

Tapper v. Chalcroft. 427 

Targus v. Puget. 192 

Tafter v. Marriot. 480 

Tate, ex parte. 133 

Taylcur and Humphrey. 495 • 

Tawney v. Crowther. 13 

Taylor v. Haylin. 1 

Taylor v. Jones. 15, 16 

Taylor and Buckley. 1 03 

Taylor and Rob'mfon. 619 

Templar and Evelyn. 94 

Tench and Loyd. 454 

Tendril and Smith. 386 
Terry and HaH. 485,482 

Tew v. Earl of Winterton. 80 
Tcynham (Lord) v. Herbert. 284 

Thomas v. Bennet. 269 

Thomas v. Key miQi. 427 

Thomas v. Hole. 469 

Thomond v. Suffex. 508 

Thompfon and Phillips. 1 28 

Thompfon v. Towne. 465 

Thorington and Sieech. 4 ! 4 

Thorndike v. Allington. 598 

Thornton and Salvin. 474 

Thornhill v. Evans. 304 

Thorpe and Sumner. 1 

Thorpe and Beaumont. 1 5 

Tbynn 



Index of Cafes referred to by the Notes. 



Thynn v. Thynn. Page 447 

Tickell and Craven. 1 5 1 

Tindal and Hargrave. 420 

Ttfchner and Jcale. 502 

Tittenfon v. Peat. 64 

Toilet v. Toilet. 563 

Tomkyns v. Ladbroke. 64 
Tothill and Earl of Chatham. 286", 

430 

Tournay v. Tournay, 482 

Tourvillc v. Naifti. 384 

Tourle v. Rand. 169 

Townley and Marryat. 580 
Townfend v. Wyndham. 15, 94, 404 

Tracey v. Hereford. 467 

Trafford v. Boehm. 1 2, 513 

Trafford tr. Afhton. 55 1, 506 

Trap, ex parte. 209 

Trefilian a/w/ ce/more. 44 1 

Trevanion v. Vivian. 425 

Treves v. Townfend. 90 

Tribe v. Webber. 261 

Trigg and Harland. 470 

Trigg and Day. 560 

Trod v. Downes. 388, 609 

Trollop and Leech. 52 

Trough ton v. Gitters. % 77 

Trueman v. Fenton. 106 

Tudway v. Bourn. 77 

Tunftall v. Bracken. 502 

Turner and Hill. 49 1 

Tweedalc v. Coventry. 487 

Twifden v. Locke. 580 

Twifs v. Maflcy. ' 68 

Twine's Cafe. 16 

Tyler and Scot. 381,464 

Tyrrelv. Hope. 124 

Tyrrconnel v. Ancaftcr. 562 

V. 

Vade and Bennet. 630 

Vallier and Rigdcn. 493 

Vanfommer and Barker. 309, 3 1 8 

Van v. Clarke. 552, 482 

Vaughan and Alexander. 82 

Vaughan aw/Simpfon. 90 

Vermuden and Brown. 283 

Vernon v. Vernon. 470 

Vtlkrs v. Beaumont. 625 

Vincent and Habergham. 589 

Vivian v. Trevanion* 426 

Underwood v. Monit, 38 1 



Underwood v. Swain. Poge 383 

Vowles and Pickering. 480 

Upton, ex parte. 134 

Uthwatt and Bellafis. 4^7»5 I4> 

Uvedallv. Halfpenny. 419 

W. 

Wade v. Paget. 563 

Wager and Rider. 508, 606 

Waite v. Whorwood. 59 

Walker v. Burnell. ' 187 
Walker v. Burroughs. 15, 268, 625 

Walker v. Meager. 420 

Walker v. Jackfon. 575 

Walker v. Perkins. 333, 606 

Waller and Lowe. 126 

Waller v. Dalt. 318 

Wallis v. Crimes. 392 

Walpole v. Conway. 427 

Walih v. WalQi. 454 

Walter v. Drew. 589 

Wank ford v. Fotherby. 13 

Wankford v. Waokford. 461 

War v. War. 482 

Ward and Barwell. I $0 
Ward, ex parte. 152, 153, 220) 

Ward v. Shallet. 190 
Ward and Avelyn. 414, 424, 283 

Ward and Bainton. 464 

Ward v. Dudley. 577 

Ward v. Lant. 626 

Wardour and Bancroft. 451 

Warren v. Warren. 427 

Warth and Rook. 480 

Warwick and Edwards* 2691 1* 

Watkins and Rivet. 467 

Watkins v. Watkins. 271, 273 

Watkinfcn v.. Barnardifton. 234 

Watfon and Godfrey. 80 

Watfon v. Routledge. 268 

Watts v. Bale. 606 

Waugh v. Auften. 263 

Webb and Kirk. 59 

Webb and Hall. 518 

Webb v. Webb. 404 

Webber and Tribe. 261 

Webfter and Bifhop. 62 

Wegg and Lingard. 268 

Welch and Beck. 9 

Welford v. Beafely. 1 3 

Webber v. Smeaton. 284 
Weft v. Skip. 171, 182, 187 

Weftcomb and Jones* 414 



Index of Cafes referred to by the Notes. 



Whale v. Booth. 
Whaley v. Norton. 
Wheeler v. Caryl. 
Wheeler v. Bingham. 
WhirleyW Hills. 
Whitbrcad v. Brockhurfl. 
Whitchot and Darrcl. 
Whitchurch v. Bevis. 
Whitchurch v. Hyde. 
White, ex parte. 
White and Pike. 
White and Perry. 
White v. Sanfom. 
Whitfield v. Fawcet. 
Whitfield, ex parte. 
Whitmore and Hartop. 
Whittaker v. Whittaker. 
Whittaker and Horton. 
Whithorne v. Harris. 
Whitter v. Whitter. 
Whorwood and White. 
Wickes v. Strahan. 
Wicket and Gulliver. 
Widrnore v. WoodrofFe. 
Widdows and Craven. 
Wig v. Wig. 
Wigg and Fiftier. 
Wilcox v. Krutzer. 
Wilder and Bhtch. 
Wildman, ex parte. 
Wilkins v. Carmichael. 
Wilkinfon v. Stafford. 
Wilkinfon v. Lutwidge. 
WilksWDrakeford. 
Willand v. Fenn. 
Williams and Owen. 
Williams v. Jekyll. 
Williams am/Laundy. 
Williams v. Brown. 
Williams v. Floyer. 
Williamfon, ex parte. 
Williamfon v. Codrington. 
Willie v. Wilkes. 
Willis v. Jernegan. 
Willis v. Willis^ 
Wills v. Rich. 
Wilfon, ex parte. 
Wilfon and Morfe. 
Wilfon and Creagh. 
Winch v. Keeley 
Winchelfea qn'd Finch. 



Page 463 


Winchefter, ex parte. P&g* 1 21 


3^3 


Windham a//^ Townfend. 15, 94 


,464 


J 90 


Windfor and Storey. 


493 


38l 


Wing and Small. 


55* 


382 


Win (more and Godwyn. 


586 


54 


Winter and Blount. 


272 


480 


Winter and Brownfden. 


414 


499 


Winterton (Earl of) and Tew. 


80 


284 


Witham and Hickfon. 


420 


222 


Withers v. Withers. 


38S 


388 


Withorne v. Harris. 


469 


480 


Wittenoon and Crefpigny. 


182 


94 


Witts v. Bodington. 


427 


335 


Witty and Gilbert. 


580 


489»577 


Wood and Short. 


12 


427 


Wood, ex parte. 


7 1 


573 


Woodhoufe v. Shcpley. 


287 


424 


Woodhoirfe v. Hofkins. 


614 


469 


Woodier's cafe. 


>95 


480 


Woobridge and Brunfden. 


4 6 9 


59 


Woolfton and Zouch. 


5^6 


67 


Worden and Lefebure. 


29 


4'8 


Worrall and Marlar. 


*93 


469 


Worfley v. Granville. 415 


> 192 


224 


Wray r. Gillet. 


381 


424 


Wright v. Holford. 


580 


493 


Wright v. Row. 


619 


2 jo 


Wiigley and Andrew. 


463 


482 


Wrottciley v. Wrottcfley. 


38i 


ic8 


. Wyld v. Lewis. 


4>3 


*34 


Wyattrf//*/H;i\ves. 


625 


409 


I Wyllie v. Wilkes. 


251 


612 


Wynn v. Littleton. 


605 


448 


Wynne v. Hawkins. 


470 


461 






480 


Y. 




5 2 5 


Yale, ex parte. 


67 


556 


Yarmouth a/M/Offulfton. 


304 


580 


Ycates v. Fettipiacc 


482 


627 


Yeates and Bug^ins. 


470 


75 


Yoik (Mayor oi) v. Pilkington. 


=»5 


625 


York Buildings Company and 


Hug- 


251 


gins 


4S* 


1, 35 1 


Yoik v. Stone. 


606 


447 


Young and Kampfhire. 


64 


46 1 


Young v. Coitlc. 


625 


'53 
350 
381 
124 

l 3 


Zi 




Zouch v. Tarfons 


490 


! Zouch. v. Woolfton. 


566 


i A TABLE 



B 



E 



O F T HE 



SEVERAL TITLES, 



WITH THEIR 



d i v i s r O N s. 



CAP. I. 

Abatement an* Ketrifto;* 

CAP. II. 

Account. 

(A) What fhall be a good bar to a 
demand of a general one, Page I 

CAP. III. 

fluemptton. 

CAP. IV. 

£&mifffou- 
cap. v. 



CAP. VI. 

Agreements, Sittitles, ftn&Co&c* 
nant?. 

(A) Agreements and covenants 
which ought to be performed in 
fpecie. p a ge z 

(B) Parol agreements, or fuch as are 
within the ftatute of frauds and per- 
juries, i j 

(C) Voluntary agreements, in what 
cafes to be performed. 13 

(D) Concerning the manner of per- 
forming agreements. 1 7 

CAP. VII. 

aomtntffrato^. 



CAP. VIII. 



CAP. 



A Table of the federal Titles 



(A) 



CAP IX. 
amendment 

In cafes cafes allowed or not. 
Page 51 



CAP. X. 
anftoer*, pica*, ant> Demurrers. 

(A) What (hall be a good plea, and 
welt pleaded. S 2 

CAP. XI. 
apprentice. 

CAP. Xil. 
&reff. 

(A) Where good, though on a Sun- 
day. 54 

CAP. XIII. 

flffctf. 

CAP. XIV. 

Stoat* ant> 4d;ttrarccnt. 

(A) Parties only affefted by it. 60 

(B) For what caufes fet afidc. 63 

CAP. XV. 

H&mfuupt. 

(A) Concerning the commiflion and 
commiflioncrs. 67 

(B) Rule as to the certificate. 73 

(C) Rule as to the affignees. 87 

(D) Joint and feparate commiflion. 

• ' 91 

(E) Rule as to his executor, or 

where he is one him fclf. 100 

(F) Rule as to landlords. 102 

(G) Rule as to compofitions. 105 
(H) Rule as to creditors. 106 
(I) Contingent debts. 1 13 



(K)Rule as to drawers and indorf- 
ers of bills of exchange. Page 122 

(L; Where affignees will be charged 
with intereit. 139 

(M) Rule as to partner(hip. ibid. 

(N) Rule a* tocofts. 138 

(O) The conftru&ion of the repeal- 
ing claufe in the loth of Queen 
Anne. i^l 

(P Rule as to dividends. 143 

(Q ) Commiflion fuperfeded. 144 

(R) Rule as to bankrupts attendance 
on affignees. 148 

(S) Rule as to an apprentice under 
a commiflion of bankruptcy. 149 

(T) Rule as to discounting of notes. 

150 

(V) Rule as to a petitioning credi- 
tor. 1 5 1 

(U) Rule as to notes where intereft 
is notexprefled. 154 

(W) The conftru&ion of the ftatute 
of the 21 Jac. 1 cap. 19. with re- 
fped to a bankrupt's pofleflion of 
goods after aflignment. ibid. 

(X) Rule as to copyholds under com- 
mifiions of bankrupts. 187 

(Y) Where affignees are liable to the 
fame equity with the bankrupt him- 
felf. 188 

(Z) What is or is not, an aft of bank- 
ruptcy. 193 

(A a) Rule as to fales before commif- 
Coners. 202 

(B b) Rule as to examinations taken 
before commiflioners. 203 

(C c) Who are liable to bankrupt- 
cy. 206 

(D d) Rule as to his allowance. 207 

(E e) Rule as to folicitors in bank- 
rupt cafes. 209 

(F f ) Rule as to the fale of offices 
under com millions of bankruptcy. 

210 

(Gg) What (hall, or (hall not, be 
faid to be a bankrupt's e ft ate, ibid. 

(H h) Where there is a truft for a 
bankrupt's wife. ibid* 

(I i) What is a trading to make a 
man a bankrupt. 217 

(Kk)Rule 



With their DIVISIONS. 



(K k) Rule as to a£ts of parliament 
relating to bankrupts. Page 219 
(LI) What is, or is not, an election 
to abide under a com mi (lion. ibid. 
(M m) Rule as to profecutions a- 
gainft him for felony, in not fur- 
rendering himfelf. 22 1 
(N n) Rule as to contingent credi- 
tors, inrefpeft to dividends. 222 
(0 0) Rule as to mutual debts and 
credits. 223 
fP p) Whether, during his time of 
privilege, he may be taken by his 
bail. 238 
(Qj\) Rule as to 4 certificate from 
commiffioners to a judge. 240 
(R r) The cfte& of acquiescence un- 
der a com million. 243 
(S s) Rule as to debts carrying in- 
tereft under commiflions of bank- 
ruptcy. 244 
(T t) Rule as to principals and their 
factors. 245 
(V v) Rule as to annuities under 
commiflions of bankruptcy. 25 1 
(U u) Rule as to taking out a fecond 
commiilion. 252 
(W w) Rule as to an open account 
under a commiflion of bankrupt- 
cy- 254 
fX x) Rule as to principal and fure- 
ty. ibid. 
(Y y) Rule as to the infolvent debt- 
ors' act. 255 
(Z z) Rule as to a bankrupt's future 
effeas. 258 
(A a a) Rule as to a cejfto bonorum. 

ibid. 
(B b b) Rule as to depofits under a 
commiflion of bankruptcy. 259 
(C c c) Rule as to relation under com- 
miflions of bankruptcy. 260 
(D d d) Rule as to an extent of the 
crown. 262 
(£ e e) Rule as to creditors aflenting 
or diflenting to a certificate. 263 
> (Ff f) Bankruptcy no abatement, ib. 
(G g g) Arreft upon a Sunday for a 
contempt regular* 264 
Vol. I. I 



CAP. XVI. 

ISaron ana JFemc 

(A) How far the hufband fhall be 
bound by the wife's a&s before 
marriage. Page 265 

(B) How far a feme covert fhall be 
bound by the a£ts in which flic has 
joined with her hufband. 269 

(C) Concerning the wife's pin-mo- 
ney and paraphernalia. ibid. 

(D) How far gifts between hufband 
and wife will be fupported. 270 

(E) Concerning alimony and feparate 
, maintenance. 272 

(F) Rule as to a poflibility of the 
wife.' 280 

CAP. XVII. 

iStils of Change 

(A) Rule as to an indorfce. 281 

CAP. .XVIII. 

Bill. 

(A) Bill of peace to prevent multi- 
plicity of fuits. 282 

(B) Bills of difcovery, and herein of 
what things there fhall be a dif- 
covery. 285 

(C) Who are to be parties to it. 290 

(D) Bills of review, ibid. 
(M) Crofs bills. 291 

(F) Supplemental bills. ibid. 

(G) Bill to perpetuate the teflimony 
of witnefles. 292 

CAP. SIX. 

JSonM ana £>bltgatton$. ^bid. 

CAP. XX. 
13ottomrcM>ontt*. 295 

CAP. XXI. 

Canon JUUi. ibid* 

b CAP. 



A Table ofthefevcral Titles, 



CAP. XXII. 

Carrier. P*g* 299 

CAP. XXIII. 

Cafes. 

(A) WheTC they arc mifreported 

ibid* 

(BJ An anomalous cafe. ibid. 

(C) Cafes imperfeft, or denied to be 

law. 3 00 



.CAP. XXIV. 

Catering 35argaw. 



301 



CAP. XXV. 

Cljarttp. 

( A) The power of this . court with 
refped thereto. 35 S 

CAP. XXVI. 

Cljafe w action. 357 

CAP. XXVII. 
Cfjurclj lleafc. ibid. 

CAP. XXVIII. 

CcmmifKon of ^Delegate*, ibid. 

CAP. XXIX. 
Condition* ana Limitations. 

(A) In what cafes the breach of a 
condition will be relieved againft. 

358 

(B) In what cafes a gift or devife, 
upon condition not to marry with- 
out confent, (hall be good and 
binding, or void being only in 
terror em. 361 
(C) Wko are to take advantage of a 
condition, or will be prejudiced 
by it. 382 

CAP. XXX. 

Contract. 33 



CAP. XXXI. 
Coptfjclt). 

(A) In what cafes a defe£Uve 
render, or the want of it, w 
fupplied in equity. Pagt 

CAP. XXXII. 

Crrttto; ant HDcbfo;. 

(A) What conveyance or difpo 
(hall be fraudulent as to cred 

(B) What conveyance or difpo 
(hall be good againft creditors. 

(C) General cafes of creditors 
debtors. 

CAP. XXXIII. 

• Coflfc. 

CAP. XXXIV. 

Courts ant> tlytiv Blurisoictii 

(A) How far Chancery will, o 
not, exert a jurifdi&ion in m 
Cognizable in inferior courts. 

CAP. XXXV. 

Court of Cfrbalrp. 

CAP. XXXVL 

Cartefp. 

CAP. XXXVII. 

Cuffom cf ILonoon. 

(A) Concerning the cuftom 
refpeft to the children of a 
man, and here of advance 
bringing into hotchpot, fui 
(hip and forfeiture. 

(B) What difpofition made 
freeman of his eftate, (hall b< 
or void, being in fraud of th 
torn. 

(C) What is, or is not, an ad 
ment. 



With their D I V I S I Q N S* 
CAP. XXXXVIII. t CAP. XLIII. 



E>ccrce« 



Page 408 



CAP. XXXIX. , 
D;c6s an» of&cr tBEtdtings. 

(A) Deeds and inftruments entered 
into by fraud, in what tcafes to be 
relieved againft. 409 

CAP. XL. 

SMrifef. 

(A) Of void devifes by uncertainty 
in the defcription of the perfon to 
take. 410 

(B) Of devifes of lands for payment 
of debts* 419 

(C) Of executory devifes of lands of 
inheritance. 422 

(D) Where a devife ftall, or (hall 
not, be in fatisfa&ion of a thing 
due. 425 

(E) What words pafs an eftate 
tail. 429 

(F) Of things perfonal, as goods, 
chattels, &c. by what defcripuon, 
and to whom good. 435 

(G) What words pafs a fee in a 
will. 436 

CAP. XLI. 

jDiffribatioft. 438 

CAP. XLII. 
£>otoer an» 3ctr.turc 

(A) What (hall be a good fatis 
faction, or good bar of dower, 
and how far a dowrefs fhall be 
favoured in equity.- 439 

(B) Of making good a deficiency 
out of a hufband's affets. 440 

(C) of what eftate of the hufband's 
with refpe& to the nature and 
quality thereof, lhaH a woman be 
endowed* 442 



©jctfmcut. ^^443 

CAP. XLIV. 

Cftatc SZJU 444 



CAP. XLV. 
C^sencr, miitncScc, a::B p;cof. 

(A) What will, or will not, be admit- 
ted as evidence, and will amount 
to fufficieut proof. ibid. 

(B) Where parol or collateral evi- 
dence will, or will not, be admit- 
ted to explain, confirm, or con- 
tradict what appears upon the face 
of a deed or will. 447 

(C) Of examining witnefles de bene 
ejffby and eftablifhing their tefti- 
mohy in perpetuan rei memiriam. 

4S° 

(D) Of the fufficiency or difability 
of a witnefs. 45 1 

(E) Rules the fame in equity as at 
law. 453 



CAP. XLVI. 
Cjtcatto;* anD JSfomimlfrtfo;*. 

(A) Who are intitled to a diflri- 
bution. 454 

(B) Of adminift ration to whom co 
be granted. 458 

(C) Of remedies by one executor 
or adminiftrator againft another, 
and how far the one (hall be an- 
fwerable for the other. 460 

(D) What ftall be aflets. 463 

(E) Rule where a bill is brought 
againft ?n executor of an execu- 
tor. 467 

CAP. XLVII. 

dfrptfition of G&o;8s. 46y 

\>z CAP. 



CAP 

®runt of t\)t Croton. Page 47 z 

CAP. XLIX. 

IFtncs auD Kecotcrtes. 

(A) What eftate or intercft may 
be barred or transferred by a fine 
or recovery. ibid. 

(B) What eftate or intereft is not 
barred by a fine or recovery. 474 

C A P. L. 

JFttfure*. 

(A) What (hall be deemed fuch. 

477 

CAP. LI. 
ifojfetturc 478 

CAP. LII. 

JFrcemanofJLofflJcir. 479 

cap. Lin. 

gratis). n>id' 

CAP. UV. 

<0nar&tan. 

(A) Whatacls of his, with regard 
to the infant's eftate, (hall be 
good. 480 

C A P. LV. 

habeas Corpus. 481 

CAP. LVI. 

^etr ano flnceffoc. ibid. 

(A) Where charges tnd incum- 
brances on lands (hall be raifed, 
or {hall fink in the inheritance for 
the benefit of the heir. 482 



A Table of the feveral Titles, 
XLVIII. 



(B) Where the heir fhall have the 
aid and benefit of the perfonal ' 
eftate. Page 487 



CAP. LVII. 

liucbaiiL) ana CCItfc 

CAP. LVIII. 
3Enfant0. 



(A) How far favoured in equity. 

480 

(B) What acts of infants are good, 
void or voidable. ibid. 



JCAP. LIX. 

3Wuittftot!. 

(A) In what cafes, and when to be 
granted. 491 

(B) Rule as to injunctions, where 
plaintiff is a bankrupt. 492 

. C A P. LX. 

Snfoltettf SDettfoj. ibid. 

CAP. LXI. 

Hointenants anb SEcnant* in 
Common* 493 

CAP. LXH. 

BMnfitre. 497 

C A P. LXIII. 

BiODgC ibid, 

CAP. LX1V, 

CAP. 



With their D 
CAP. LXV. 

Hapfrt JUgacv. P*p499 
CAP. LXVI. 

leafe. 500 

CAP. LXVH. 

legacies. 

(A) Of veiled or lapfed legacies, be- 
ing to be paid at a future time, or 
certain age, to which the legatees 
never arrived. 500 

(B) Where legatees (hall, or {hall not, 
have intercft. 505 

(Cj Of fpecifick and pecuniary le- 
gacies, and here of abating and 
refunding. 507 

(D) Ademption of a legacy. 509 

(E) Of lapfed legacy, by legatees 
dying in the life-time of the tefta- 
tor, and here in what cafes it {hall 
be good, and veft in another pcr- 
fon to whom it is limited over. 

510 

cap. Lxvnr. 
Maintenance fo; C tyiltotn- 5 1 3 

CAP. LXIX. 

damage* 

(A) Where it is clandeftine. 515 

CAP. LXX. 
jailer ant> fcertoanf. 

( A) What remedy they have againft 
each other. 518 

CAP. LXXI. 

9eftti$?cfit«* s*9 



1 v 1 s 1 n s. 

cap. Lxxn; 

tytmty* Page 519 
CAP. LXXIII. 

£^o;tgage- 

(A) Of cancelled ones. 52^ 

(B) What will or will not pafs by 

it. ibid. 

(C) Where a perfon who wants to 
redeem, muft do equity to the 
mortgagee before he will be ad- 
mitted. 520 

CAP. LXXTV. 

i^e^eatHegno. 5" 

CAP. LXXV. 

j£e*t of Jinn. s 22 

CAP. LXXVI. 

Notice. 

(A) Plea of a purchafer without no* 
tice over-ruled. ibid, 

CAP. Lxxvn. 
Cap. lxxvhi. 



c 


A P. LXXIX. 






£ffice. 


52(J 


c 


A P. LXXX. 






2 CAP. 



A Table of the ftvtral TlTlIJ, 



CAP. LXXXI. 

para^cmatta. iV54° 

cap. lxxxii. 
parol flkjrccmtnt. ibid. 

C A- P. LXXXIII. 
CAP. LXXXIV. 

parfcn. . 541 

CAP. LXXXV. 
parties:. 541 

C A P. LXXXVL 

partition. ibid. 

CAP. LXXXVII. 

perftnal ©fact. 543 

cap. LXXXVIII. 
pin-money. #«/•■ 

CAP. LXXXTX. 

plantation*. «'«</. 

CAP. XC. 

plea. 545 

C A P. XCI. 

pdirj of antorajiee, #«r. 



CAP. XCII. 

{tatfftm* 

(A) At what time portions (hall be 
raifed, or reverGonary eftates, or 
terms foldfor that parpofe. P. 549 

(b) Rule as to the confideration. ibid. 

CAP. XCIII. 

pttujr. 

(A) Whether well executed or not. 

553 

(B) Of the right execution of a 

power, and where the defe& of it 
will be fupplied. 56 1 

CAP. XC1V. 
CAP. XCV. 

$J?oc!>etn amt> 57* 

C A P. XCVI. 
pjiftOitiOR. 57» 

CAP. XCVII. 
porefcafe. 

(A) Of purchafers without notice. 

57i 

(B) Whether lands purchafed after 
a will, pafs by it. 573 

cap. xcvin. 
Steal Cffate. 

(A) Where the perfonal eftate (hall 
not be applied in exoneration. 573 

CA P. 



. With their Divisions. 



CAP. XCIX. 

jKeeeifcer. Pag* 

(A) Rule as to appointing him. 578 

C A P. C. 
ttecouctte*. ibid. 

C A P. CI. 

delations. ibid. 

cap. en. 
jRemainocr. 579 

cap. cm. 
Kent* 

{A) In what cafes there may be a 
remedy for rent in equity, when 
none at law. 598 

CAP. CIV. 

Retailing %tu&&. 599 

CAP. CV. 
Hule of t$e Court. ibid. 

CAP. CVI. 

&cris:ncr. 599 



CAP. CIX. 
Spiritual Ccur J. Page 600 

C A P. CX. 
statute relating to Cre&iro?*. 

(A) Rule as to the 13 of Eliz. cap. 5. 

601 

CAP. CXI. 

Statute of jFrauw ano ffcrturte*. 

ibid. 

CAP. CXII. 

^!atuteofllimttatiomi. ibid. 

CAP. CXIII. 
statute relating to purdjarera. 

(A) Rule as to the 27 of Eliz. cap. 4. 

602 

CAP. CXIV. 

j&fctoar*. ibid. 

CAP. CXV. 

ffra;r;ttocr. ibid, 

CAP. CXVI. 

SCenantss in Common, ibid. 



cap. evii. 


\, *\. X. VAYU. 

tenant bp t\)t Curtcfp. 6aj 


rfarace Maintenance. 600 


cap. cxvm. 


CAP. cvm. 


%HW' 


$p:ci8:b llegacv. ibid. 


(A) 01* modus. 6 to 

CAP. 



A Table of the feveral Titles, &c. 



CAP. CXIX. 

JTr&De ant ^ert&attfife. Pa g e6u 

CAP. CXX. 

CruttannCruffcc*. 

(A) Where aas of the truftees (hall 
defeat the truft, or be a breach of 
truft in them. 613 

(B) Of refultings trulls, and truft s 
by implication. 61 3 

(C) Of truft8 to attend the inherit- 
ance. 624 

^D) Truftees how to account, and 
what allowances to have. ibid. 



Pap. exxr. 
Iptoluntarc SDecD. 

(A; The effea thereof. 



CAP. CX3QII. 



6*5 



626 



CAP. CXXIII. 
Mil!. 

(A) The power of this court over 
the prerogative office. Page 627 

(B) The validity df a probate, where 
examinable. 628 

CAP. CXXIV. 

Witiufe. 632 

CAP. CXXV. 

XMoft* &f ftimt'tatton- ibid. 



C A P. CXXVI. 



ibid* 



CAP. CXXVII. 

OTrtf. 

(A) Of the de homine replegiando y and 
its effects. 633 



A LIST 



A LIST of the Matters of the Rolls during the 
time Lord Hardwicke was Chancellor; 
and alio of Attornies and Solicitors General, 
and King's Counfel, who were converfant in 
the Court of Chancery during that period^ 

Mqjlers of the Rolls. 

SIR Joseph Jekyll appointed Mafter of theRoU* 
July 13, 1717, and continued in this office till the latte? 
end of the year 1738. 
The Honourable John Vernev fucceeded him Oflober 5^ 

William Fortescue, Efq-, appointed November 5, 174U 
Six John Strange, January 1 1, 1 749 — 50. 
Sir Thomas Clarke, May 29, 1754* 

Solicitors General. 

Sir Dudley Ryder appointed November 30, 1733. 

Sir John Strange, January 28, 1736. 

The Honourable Willam Murray, November 27, 174a* 

Sir Richard Lloyd, April 10, 1 7<?4« 

The Honourable Charles Tori, November 3, 1756. 

Attorneys General. 

Sir Dudley Ryder appointed January 28, 1 736. 
The Honourable William Murray, April 9th 1754* 
Sir Robert Henley, November 3, 1756, 

King's Counfel. 

Francis Chute, Efquire, appointed February 14, 1735* 
John Browne, tfquire, February 14, 1735. 
William Noel, Efquire, February 6, 1737 — 8. 
%homas Swell, Efquire, April 4, 1 754. 



Vot.1. c CASES 



Memorandum^ That on Monday the 2ift of February 173*, 
Lord Hardwicke was appointed Lord High Chancellor 
of Great Britain y a^d on the Thur/day following, fat in 
Lincoln's Inn Hull, to hold the firft General Seal after 
Hilary term. 



C A P. I. 

abatement ano KeUfUoj. 

Vide title Billy under the Divifion, Supplemental Bill. 
CAP. II. . 

account. 

(A) Whatjball be a good Bar to a Demand of a general one. 

Michaelmas 
Daw/on v. Dawfon m term, 1737. 

Cafe 1. 

herd Chancellor. *\T THERE a bill is brought for a general Where a defen- 

W account, and the defendant fets forth ^t££* 

1 dated one, the plaintiff mud amend his bill (1): For the it U a bar to % 

ftated account is, prima facie, a bar, till particular errors are * encral °« till 

affigned to the dated account (*). KSd!™ 

To fupport a dated account it is not fufficient to fay, that it is not fuffici- 

thcre has been a dividend, which implies an account dated, ent, to maintain 

for a dividend may be made upon a fuppofmon that the edate to^IedwStre" 

will amount to fo much; but dill fubjc& to an account that hai been a dWi- 

may be taken afterwards. 4cnd "J** bf - 

4 tween the par* 

ties. 

(1) See Sumner v, Thorpe, pofi 2 vol. I. (hewn. Taylor v. Haylin, 2 Bro. Cba. 
UlUh v. Jerncgan % ibid. 25 1. Burk v. Rep. 310. Jobufinv . Curt'u 9 % Bro. CBa. 
Br«\jn y ibid. 399. Hankey v. Simp/en, Rep. 266. As to the length of time 
ftft 110L 303. ' permitted by the Courts to bar the 

(2) In a bill to open a fettled ac- opening of accounts, fee pofi 2 vol. 113. 
count, particular or fpecific errors muft be and note. 



CAP. III. 

ademption. 

Vide title Legacies* 
Vo^ I. B 



Ac 



C A P.. IV. 

anmilHon. 

Vide title Billy under the Dhi/ion, Bills of Dijiovcry, &C. 



C 2 3 C A P. V. 

aufcctafOH. 

Vide title Trujl and Trujlees, under the Divifion, Rcfulting Tmjss, 
and Trtifis by Implication. 



y ^.^;. c a p. vi. 

j#z&^^ agreements, articles, arrtJ Cotanantsf. 

^Sr^-t^*/^^ (A) Agreements and Cbver.ants which ought to be performed in 

S^fr f*y /~J&r~t- ft"'"* 

*■&'>■ (B) Parol Agreements, orftich as ere within the Statute rf Frauds and 

Z^J^*' Perjuries. 

-*^~ j, (C) Vdunt.iry Agreenunts, in iuhut Cr/rs to be pa finned. 

*S ~ y (D) Concerning the Manna- cf 'performing Agreements * 

/ (A) Agreements end Covenants which ought to be performed in 

fpede. 

/* „J&*4*t*fi ****** Ik*"'] SiapUtzn an Infant, by Ann his Mother — PJaintiiT. 



**/jr 



Philip Siapilton and others 



Defendants. 



^Cafe 






Pb&p Stcfilton 
tenant of the 
prcmifics in 
<lueftio:i for 99 
years, if he fo 



T)Y a deed dated on the 21ft of Augujl, 1661, Philip Stapilton 



) was tenant of the premifles in queition for 99 years, if he fo 
g live, remainder to tyuliecs to preferve contingent remain- 

male, re- 



lon t 

ders, remainder to his firlt and other fons 

mainder to his right heirs. 



ltingcr 
in tail 



Jong lived, remainder to his firft and other fons in till, remainder to his right heirs, having two fons, 
Henry and PL'u'ij> 9 they by leufe and rdcafe of die 9th and icth Sept. 1724, in order to fettle and per- 
petuate the mi.ior.;, &c. in the r.Jmc and blood cf the S:::fi.'tor.: t and for making provifion for his 
Ions, and for preventing dhputes that nigh: pofhbly arifc between them or any other pe;fo:i claiming 
ah intercft in the eftate*, and for barring all cftate^ taii, irl'^fc and confirm to two tiuilrcs all thofe 
manors, &c. to hold to them and their heir.,, (a:, to pa:?) to the ufc of Philip the filler, his hr 




J%4& 



A/ 



// 






Fhilip 



agreement*, Srtfcic?, aim Covenants*. 3 

Philip having two fons, Henry and Philips they by deeds cf Stapilton t. 
!eafe and relcafc the 9th and 10th of Sept. 172.1/ reciting, that Stapilton »^^ 
for fettling and perpetuating all manors, fcV. in the mmcjfi*p0*f * .* r 
and blood of the Stapil!ons y and for making provision for • /faJb*^' 
lixs two fons, &c. for preventing difputc and controverGcs —/ '" 
that might poffibly arife between the faid two Ions, or ^trty* 



any other perion 



claiming 



an intereft in 




:i or ary of the 
etkates therein after mentioned, and for barring all eitates 
tail, and for anfwering, all and every the purnofc and purpofes - 
of the parties thereto, and for and in confuLr.uion of the IV. m 
of 5/. releafe and confirm to Thanh/on ami Fail fax ail thofe ma- 
nors, ^ir. To have and to hold to them, their heirs and af-' ^ 
figns, to the ufc (as to part) of Philip the father, his heirs and 2 ' yf"*^? 1 
alligns for ever, and as to another part, to the life of Philip thz //^ __ 

life, remainder j* S A 

to truftees to preftrvc contingent remainders, remainder to hi* £***/ * c 
fi-il and every other fun in tail male, remainder to Philip thz / s^* 
fca for life, remainder to truftees to prelVrvc contingent re- 
mainders, remainder to his firft and other foils in tail male, iv- 
nn*;r.der to the daughters of Henry in tail, remainder to ll;e * '* > 
daughters of Philip the fon in tail, remainder to the right hciis ( s^+ r. 
of Philip the father. And as to the remaining part, to the ufe y 
of Philip the father for life, with like limitations in the firib 
place to Philip the fon and his iflue, and then to Henry and 
his iiTue, remainder in fee to the father. 

There were covenants to fufrer a recovery within 12 month*, 
ad likewife for farther afTuranccs. — A 7 . 77. To this deed, the 
kcir cf the furviving truftec in the deed in 1661 was not a party. 

Eut by deeds of leafe and releafe dated the 28th and 29th of B ? l-^antf' C2 4 

fcr.% 1724. to which the heir of the furviving trullcc of the ^'^ \^} 1 an< *— £- 

\ 4wi of 1661 was a party, the father and two fv>ns make Thwip- 172.4, the r'.. w her 

\fin and Fairfax tenants to the prsccipe, in cider to 

ftcovery for th 

I pi and 1 oth of S.y-r. 

Before any recovery fuffered Henry died, leaving iflli 




pnrpofes mentioned in the former deeds of the ™,j \yS^' tc- 



|f!iixitin\ 

former deed 

Afterwards, by leafe and releafe the 



n.inti to the prae- 'A*s 
furtcr a recovery 



ror tnc p u. -poles ■ 
mentioned in the 
Before any recover)- fuflfcred Henry Jicd, leaving ifiue the plaintiff. 



ervurds, bjr 



1 2th and 13th of Af v 
\i$r. 1725, to which the heir of the furviving trull ee of the deed icL^iuLuil, S^ 
;rfl66l was a party, Philip the father and Philip the fon cove- ^V'-V 3 ;-^^** 
aaot to fuffer a recovery, in which Thompfin and Fairfax were J-^iiVfathcra^d ^3j, 
to be tenants to the precipe, to the ufe, as to part, of Philip i/:/> tiic^n ^' 
Ifcfither, his heirs and affigns; and as to the other part, to the ^a'r'co^rvf"^''* 
A of Philip the father for life, remainder to Philip the fon in fee. i.Avi^hVw^. J>*/, 



t to be tcaanrs to the pnecjpe, to the ufe, as to part, of FHty the father and h ; .o h 
!• 4e other rart, tm U*« uie ofPlilif the father for life, remainder to Pkif;f the Ion in fee. 



:rs: a.id as 



& 



B« 



la 






C A P.. IV. 

amnfffton: 

Vide title Bill, under the Divifcn, Bills of Difcovcry> &C# 



[ 2 3 C A P. V. 

Vide title Trufl and Trufees, under the Divifton, Rcfulting Tritjxs, 
and Trt/fts by Implication. 



CAP. VI. 




y< • / *^£:f / ' 

#^4f^> ggrccmcntjS, 3rtfcle0, anfc Covenant*. 

^C^^^/^t- (A) Agreements and Covenants which ought to be performed in 

(B) Parol Agreements, or fitch as arc within the Statute of Frauds and 
Perjuries. 

(C) Voluntary Agreements, in what Cafes to be performed. 

(D) Concerning the Manner cf performing Agreements. 

(A) Agreements and Covenants which ought to he jc; formed in 

fpecie. 

St ^k+Jntfto* ad * Henry Stapiitcn an Infant, by Ann Lis MotLer — PLiimiiT. 
V&'/Jp™' PM'P Siapilton and others . Defendants. 

J^T^Cafe 2. "Cp a iieecl c ' ateJ on * c 2lft of ^"& l lP> l6 ^i, Philip Stapi/ton 

Ac^jttt- ' J£5 v/as tenant of the premiifcs in qucition for 09 years, if he fo 

~ S~ Pbtii? StcpUton long live, remainder to truftecs to prcferve contingent remain- 

Sty pi^to^a aers > rcmainder t0 his firft and otlier f <>ns in tail male, re- 
yfl^M/' quettion far 99 mainder to his right heirs. 

V#*' Jong lived, remainder to his firft and other fans in till, remainder to his right heirs, having two ion?, 
■ """ Henry and Philip* they by leafe and rcleafe of the 9th and icth Sept, 1724, in order to fettle and per- 
petuate the minors, Gfr. in the name and blood of the Sispitt^n:* «nu for mailing provifion for hit 
Ions, and for preventing dii'putes that might poffibiy arifc between them or any other peifaa claiming 
■h Intercft in the eftate*, and for barring all cftatCi uii, rel^ ifc and confirm to two tiullces all thofe 
manors, &c. to hold to them and their heir-, (a* to pa: t} to the ufe of Philip the fitlicr, his h"in 
and afligns for ever, and [a to another part) to the ufe of the father for life, to Hrnry the f m for life, 
remainder to t:ufcees far pr- Irving, Cfr. rcmainder to his fi.it ai;u every other fan in tail male, re- 
mainder to Pt:/':p the fan f-r lire, w'rh like remainders to the daughter* 'of Hery in tail, remainder to 
the daughters of Phil'tp the Ion in tail, remainder to the right heirs of Pi-Hip tne father. And as f 
- the other part* to the ufe \jf Pktiip the faih^r fox li/e, rcm.u:ider to PbUlp the fan for life, &c. 



agreement*, articles, aim Covenant*. 5 

. If tenant in tail confcfies a judgment, or mortgages the St Am ton ▼. 
lands, and afterwards fuffers a recovery to a collateral purpofe, jj>c A * llT0 *y 
that recovery (hall enure to make good all his precedent afts *®?*f ' ^ . 4 
and incumbrances, 1 Ch. Caf. 119. (Lord Chancellor men- *cJcc*isti<& 
tioned a cafe in lord King's time, where father tenant in tail, A / j> 

remainder to himfelf in fee, contra&ing debts on fpecialty, his M^^w^yf- 
(on after his death levying a fine let in his father's creditors) ( 1 ). JiW.tf/Jrist 
And if a recovery fuft'ered for another purpofe will fubflantinte sP// 

any prior aft of the tenant in tail, much more, in this cafe, 

this recovery will fubftantiate the firft deed, where there are 
all the parties who covenanted by that deed. 

As to the fecond point ; this cannot be confidered as a vo- 
luntary agreement, for Henry's legitimacy was then doubtful, 
and if he had proved legitimate, Philip would have come into 
this court to have die agreement executed, and Henry would 
have been bound by it. This court has decreed the perform- 
ance of agreements like this founded upon miftakes; as in the 
cafes of Frank v. Frank, 1 Cfj. Caf. 84. and Cann v. Canny 1 

rar.723. 

For the defendant it was argued, as to the firft point, that 
Henry being dead before the recovery was fuffered, the intent 
of the parties, in the firft deed, could not be purfued; for the 
plaintiff (fuppofing him legitimate) claims paramount his fa- 
ther, and the deed of 1661, therefore as the recovery could not 
fubftantiate the firft deed; fuppofing him legitimate, it fhall 
not fubftantiate it, now he is found illegitimate. 

The plaintiff upon the death of hi6 father had not any ufe 
vefted in him, for the intent of the parties was, that the ufes 
fliould arife out of the recovery; the ends recited could not be • 
come at without a recovery, and where the intent of the par- 
ties is, that the ufes fliould pafs.Jjy fine or recovery, nothing 
will pafs by the deed, that is intended, only to declare the ufes ; 
the fine and recovery all make but one conveyance. Cro. Jac. 
643. 2 Ro. Rep. 68. 2 Lev. 306. I Vent. 279. 2 Lev. 54. 
CrmwelPs cafe. 2 Co, 69. b* Cm Jac. 320. 

As to the fecond point ; take it as an agreement, this court 
will not decree a performance of it, for fuppofing Henry had 
been found legitimate, this court would not have decreed a per- 
formance of it againft the plaintiff; fo that, in regard to the 
defendant, it muft be confidered as a voluntary agreement, into 
which he was drawn without any valuable con fi deration, and 
the covenant for further affurance will be void as the deed itfelf 
to which it is annexed is void; and fo it was determined in 
the cafe of Furzaker v. Robin/on , Free: in Chan. 475. 

(1) See the cafe of Symonds v. Cud- Sbelbxrnc v. Biddupb, 4 Bi a. Par. Ca. 
more, 1 Soli. 338. 1 Sbo<w; 370. 4 594. 
jtf*/. 1. Cartbew 257. and Earl of 

B 3 Lord 



5 agreement^ article*, an* Covenant*. 

Stahlton v. Lord Chancellor. The plaintiff in this cafe is intitled to have 

Stapilton. a decree; there was a fuificient foundation for Philip the father, 

Where agree- and Henry and Philip his two fons, to execute the leafe and rc- 

Tn^Uytl^t lcufc of the 9 th and I0th of St 'P L l 7 2 4* !t was t0 fave thc ho- 
honour of a fa- nour of the father and his family, and was a reasonable agrec- 

mily, and are mcn t, and therefore if it is pofliblc for a court of equity to de- 

reitoruble ones, r r •*. •.. 1 .. * i 1 

a court of equity crcc a performance oi it, it ought to be done, 
will, ii poilioic, *It would be very hard for thc defendant on his fide, to en- 
f nnaiice Cf " devour to fct afide this agreement, and the effect of this deed. 
r *$ I Confidcr the flatc and fituation of tlie family at the time of 
making thc agreement: Philip had thefc children grown up, 
had a very confiderablc real eflate, both his fons then owned as 
legitimate, their father and mother had lived together as huf- 
band and wife for many years, and at the time of this agree- 
ment were fo ; there was a forefight in the father and mother, 
that fuch a difpute between their two fons might hereafter 
arife, to their dishonour and likewifc that of the family. 

Thc foundation of this agreement, the illegitimacy of the 
cldeit fon Henry, has now been determined by trial, and it is 
found that Henry was a baltard, yet both the fons arc of thc 
fame blood of the father equally, though not fo in thc notion 
of the law. 

If thc elder fon fliould be found illegitimate (as he now is), 
the father knew he would be left without any provifion if no 
fuch agreement was made; and on the other hand, if his legi- 
timacy fliould be eftablifhed, then Philip the younger fon would 
have nothing: to prevent thefe difputcs, and ill confe- 
rences, the father brings both his fons into an agreement to 
make a divifion of his real cftate. It is very plain thc parties 
did not know who was thc heir of the furviving truflec, in the 
fettlement of 1661, at the time of thc leafe and releafe the 9th 
and 10th of Stpt. 1724; becaufe they covenant a writ of entry 
ihould be fued out within 1 2 months, which is a very unufual 
time to limit to fuffer a recovery, and done in order to give 
time to find out the heir of thc furviving truflee, if they could 
find him out; but he was afterwards found and made a party 
to thc deeds of the 28th and 29th of Sept. J 724. 

Thc bill is brought by the eldcll fon and heir of Henry, tQ 
have the benefit and pofleflion of thc whole eflate, and to have 
an account of the rents and profits, and to be quieted in the 
pofleflion, and for general relief. Upon tire firft hearing an 
ifTue' was directed to try whether Henry thc father was legiti- 
mate, und found he was not, and now the plaintiff* infifls upon 
An infint may ' iav " lI1 S l " c b** 11 ^ of this agreement, whereby he is only inti- 
have a decree up- tied to a part: this being the bill of an infant, he may have a 
en any matter decree upon any matter arifing upon the llatc of his cafe, 

ariui.g on the . 111 . • 1 1 • 1 t . ~ 1 , . 

fUc of his cafe, thuiyh he has not particularly mentioned and inhiled upon it, 

thi>ug!i not par- an (J 

ticuUrly pra)ad 
t>y uii bill. 



agreement^ Sttfcicft anti Covenant*. 6 

andpraved it by his bill 5 but it might be otherwife in the cafe Stahlton r, 
of an adult pcrfon ( f ). Stamlto*. 

Upon this cafe there strife two general queftions. 

firf* Whether the plaintiff has any cftate in law by virtue 
of any of the conveyances, or by the recovery ? 

Secondly y If he has no cftate at law, or only a defeafible one, 
whether he is intitled to have the benefit of this agreement, and 
to have it carried, into execution here? 
The firft quefKon confifts of two branches. 

Firft, Whether the leafe and relenfe of die 9th and 10th of C 7 3 
Sept. 1724, will amount to a good declaration of the ufes of 
the recovery, notwithftanding the fubfequent deed of April 
1725? 

Secondly If not, whether the recovery of Trinity term 1725, 
having barred the eftatc tail, will make good any eftate which 
palled by the leafe and releafc of the 9th and 10th of September 
1724? 

. As to the firft ; whether the lenfe and releafe is a good decla- 
ration of the ufes of the recovery, 1 am ftrongly inclined to 
think it will amount to a good declaration : this queflion de- 
pends on the conftrucYion of law, and the authority of cafes 
upon the declaration of ufes. It is true, where there is an agree- . 

nient to fuller a recovery, and ufes arc declared, if the recovery is ^ agreement to 
2fter fuiTcrcd, though it varies in point of time from the recovery fuffrr a recovery, 
covenanted to be fufFcrcd, yet if there is no fubfequent dt-clara- *££**££ ^ 
tion of ufes, the recovery will enure to the ufes fo declared (2). futtercd a: af- 
ferent time from 
die recovery covenanted to be fuffered, yet if no fubfequent declaration of ufes, it will enure to the ufe* 
(b dedirtd. 

And before the ftatute of frauds, if the deeds declaring the 
ufes had not been purfued, a parol declaration of ufes would 
have been let in ; but if there is a deed declaring the ufes, and 
the common recovery is futfered accordingly, that would, before 
the ftatute, exclude a parol declaration of new ufes (3). 

But even now there may be a fubfequent declaration of ufes, where there is a 
but that declaration mull be in writing, and fuch a new decla- deed to lead the 
ration of ufes depends upon the agreement of the parties ; there- ^*\**^™' 
fore, though it is faid at the bar, that the declaration of ufes is the power of te- 

nanc n t."l to 
declare new ufes, but fuch fubfequent declaration muft be by all the parties concerned in intercft. 
The expreffion in the countcf; of Rutlan(T% cafe. 5 Cz. that whilft it h dire dory only, new ufe-i may 
fee declared, means that as the ufe* muft arife out of the agreement of the parties, they by mutual confent 
may change the ufei. 

(1) See pojl 2 vol. 141. Grimes v. (3) Countefs of Rutland'* cafe, 5 Co. 

French. 25. a. b. DvwnmatCs cafe, 9 Co. 10. b. 

(1) See Haver gil and Hare, 2 Roil. 



&r % 709. 



B 4 in 



7 agreements article*, miH Cofienanw* 

$ta?iitoh ▼• in the power of the tenant in tail, and that he may declare new 
Jtahitov. u f cs . j ^^ ^ nQt tQ ^ | aw> for f uc}l f u bf C q Ucnt dcclara- 

tion mud be by all the parties, concemed in intereft ; and in 
the cafe of the countefs of Rutland, 5 Co. 25. it is not laid 
down there, that the tenant in tail might declare new ufes, but 
faid, ivhlljl it is direBory only, new ufes may be declared, and 
the meaning of that is, that as die ufes mud arife out of the 
agreement of the parties, die parties may change the ufes ( 1 ), but 
that muft be done by the mutual confent of all the parties con- 
cemed in intereft, and in that cafe it was a mutual agreement 
of all parties (2). 

And in the cafe of Jones v. AJsrley, 2 Soli. 677. There was a 
variance as to the time of fufTering the recovery, from the deed 
declaring the ufes, and there held that a declaration of ufes was 
equally good, whether by deed or not, if in writing. 

But in the prefent cafei the fecond agreement not being be- 
tween all the parties concerned in intereft, ought not to con- 
trol the firft declaration, and efpecially as this recovery was 
fufFered within the time prescribed by the firft deed, and be- 
tween the fame demandant and tenant. 
[ 8 ] The confederation for fufFering the recovery was good both 

in law and equity, and there is no cafe to warrant mc to fay, the 
firft agreement is not good and binding, or that the tenant in 
tail could by his own agreement afterwards change the ufes. 

But if it was doubtful whether the recovery fuflered in 1725 
(hould enure to the ufes declared by the deed of 1724, I am 
of opinion the recovery will operate to make good thofe eftates 
which pafled by the deed of 1724. 

But to this two objections have been made. 
Firjly That the ufes muft be governed by, and operate accord- 
ing to the intention of the parties, therefore the fubfequcnt re- 
covery being fufFered to other ufes, thofe ufes will take place. 

Secondly, If any ufes did pafs by the deed in 1724* yet this 
recovery will not make thofe ufes good, becaufe the fubfe- 
qucnt recovery was fuflered to particular ufes declared by the 
deed of 1725. . 
Where a court As to the firft objection. I am of opinion that a ufc did pafs 
of law or equity by the deed of 1724, and according to the intention of the par- 
ne^rldfab? 6 tlcs# *' ls certainl Y truc > that > according to the ftatute of ufes, the 
ftantial intent general do&rinc is, that the ufes fhall be executed according to 
of the parties the intention of the parties, but both the courts of law and 
create mould* cc L n * l Y tonfider what was the general and final intent of the 
pafi, they will parties. In this cafe, their intention was, that the eftate (hould 

conftrue deeds in 

support of that intention, different from the formal nature of thofe deeds themfelves. 

(1) See fecond refolution in Jones v. (2) See Durnfordv^Lane, 1 Br*. Chan. 
Mvrky, 2 Salt. 677. S. C. Co.nb. 429. Ca. 106. 

pafs, 



agreement*, article?, anH CoTjetiantje?- 8 

pa6, and wherever a court of law or equity find that the ge- Stahltok t. 
neral and fubftantial intent of the parties, was that the cftate Sta,,x - tmi » 
fhould pnfs, they will conftrue deeds in fupport of that inten- 
tion, different from the formal nature of thofe deeds them- 
felves; as a feoffment, to ferve the intention of the parties, 
(hall operate as a covenant to (land feifed (i). The intent here 
was, that the eflate in point of law fliould pafs by the deed of 
1724, and that the ufes declared by that deed lhould veft in 
the mean time till the recovery fuffered. 

This is an anfwer to the objection arifing from the ftatute 
of ufes; but there is another queftion, what eflate paffed by 
the deed of 1724? 

It was a defeasible eflate to ferve the ufes of that deed, and 
fois the refolution in Machell v. Clark in Farr. 1 8. Sa/k. 619. (a). 
That tenant in tail may convey a bafe fee and eflate defeasible 
bv the entry of the iffue. 

Tl>e next queftion is, Whether the recovery fuffered in 
1725 did enure to make good, and render indefeafible thofe 
bafe eftates created by the deed of 1724 ? 
And I am of opinion they are made good. 
The objection to this is, That the recovery was fuffered in 
purfuance oi' the deed in 1725, wherein there were new ufes li- 
mited, but the only ufes which make any difference in that 
deed are to Philip the fon and his heirs, fo there is nobody con- 
cerned in the queftion but Philip and his heirs. / 
It has been argued by defendant's counfel, that, if the firft de- 
claration of ufes is in general to prevail, purchafers of eftates, [ 9 1 
though they have a recovery for f lengthening their title, with Where there Is 
a declaration of the ufes of the recovery to themfclvcs and their ^ recovery for 
heirs, cannot he fofe, for the vender may defeat fuch declaration the tole^f? 
by a precedent one to different ufes ; but in fuch cafes I think a purchafcr, with 
recovery would not enure to make good fuch former declaration a h decl ^ atio 2^ 
of ufes, but only the ufes of the purchafe. and his heirs, 

notwithstanding 
* precedent one to different ufes, it will not enure to make good fuch farmer declaration, but the ufes of 
the purchase only. 

It is admitted, that if tenant in tail confeffes a judgment, or a if tenant in tail 
ftatute, or enters into a bond, and afterwards fuffers a recovery ^^ n ^dby ££ 
to bar the cftate tail, it lets in the precedent judgment, &c. ftatute, andfuf- 
Arid it is as clear, if a tenant in tail makes a leafe not warranted f cn a . n f° Y . eT V 
by the ftatute of the 32 Hen. 8. if he fuffers a recovery, that i^inllkesV 
lets in the leafe and makes it good (3). There are fo many cafes good} the fame 
of this kind, that it is not neceffary for mc to mention them. ftaTutew bond!!* 

This cafe is different from thofe that turn only upon the 
point of the effeft of a mere declaration of ufes ; for a mere de- 
claration of ufes fubfifts only upon the agreement of the parties, 

(1) Set Croffiug \ % Seudamcre, x Vent. (3) See CapcVt cafe, 1 Co. 62. a. 
I37. Cbomlry's cafe, 2 Co. 52. b. Beck on 

\l) Cem. 1 19. S. C. dcm. Hwwims v. HVjb, 1 Wilf. z 7 j. 

and 



9 Agreements, Srtfcle& anU Cotjenantfr 

St att t tow r. an d hi fuch cafes, where the agreement has been changed by 
tapiltow. mutua i a {j* cnt of all parties, there a recovery {hall enure- to make 
good fuch laft agreement or declaration. 

But if the eftate was vcfted, notwithstanding fuch declaration 
The ifiueof te- of ufes, yet the recovery has always been held to make good fuch 
»ant in tail by defeafible eftate ( i ) ; for the prior leafe, charge or eftate made by 
tutT^&A^iiMy tenant m ta ^ 1S or ^T defeafible by the iflue, by virtue of the fta- 
avoid a prior tute de donis, which was made to proteft the iflue againft the 
2 ftf * C ^aK ° r anenatI0n °f tne tenant in tail ; therefore the iflue would avoid 
fuch^atn, but ^ch leafc, fcfr. but not the tenant in tail himfcif j but when by 
not he hinifcif j the recovery he has gained to himfelf a fee, all the reafoning for 
recovc h rV n ^ y hS C av °W« n S an c ^ ate macic by tenant in tail is gone, for the iflue is 
gained a fee, the barred by the recovery. The reafon why the iflue may avoid a 
blue being bar- charge made by tenant in tail, is upon account of the protc&ion 
fcnfng for their" °^ ^c iflue and his eftate under the ftatute de donis, and of the 
•voiding cflatcs, privity of the eftate tail ; but when the privity is gone, the 
denude by him rea f on C eafes, and to this purnofe is the cafe of Croler v. Ke!fey % 
"^ Sir IV. Jones 60. 

In the. cafe of Lord Deriventwa. r, Mod. Cafes in Law and Equity, 
Where a tenant 172. 2d party the queftion was, Whether a papift, tenant in tail, 
ia tail fuffers a f u ffering a recovery and declaring the ufes to himfelf in fee, gain- 
cM°ftruaion of ec * a new e ^ate within the nth and 12th of Will. 3. or was in 
law is Li of the of the old ufe ? And it was held the 5 th of Geo. 1. by four 
efta" f2 "' dT ^ j u -?" s out °f 6 ve > appointed delegates to determine appeals from 
cha^sd'of the the commiffioners of forfeited eftates, that he was in of the old 
jftitute dt donis. u fe ; and I take it for law, that a tenant in tail fuffering a recovery 
is in of the old ufe, and that the eftate is difcharged of the fta- 
tute d: dir.is (2), and therefore I am of opinion that the re- 
covery hr.3 made good this defeafible eftate created by the 
deed of 17:^. 

It has !>ccn objefted, that if the plaintiff has any title, his re- 
£ 10 ] medy is at law, out I think it is more properly here ; he is an 
infant, and has come recently into this court, nor do I think this 
cafe depends intirely upon the point of law ; for I am of opinion 
that the plaintiff is intitled to have an execution of the agree- 
ment, as a good and binding agreement in this court. 
Whercavulm- The quetlion is, Whether there was any valuable cenfider- 
ble confidcration ation on ail fides for eutring into this agreement ? If fo, then 
for an agree- ^ eX Q ; s a fufficient ground for coming here ; but a mere vo- 

ment on al! fide:, , # b r • r 

there is afuffi- luntcer is not intitled to cume here for an execution of an agree- 

cicnt ground 

to come into a court of equity, but a mere volunteer not entitled to come here for an execution of an. 

agreement. 

(1) Sec Goodrich v. Mead, $ Burr. 107. S. C. Roe dem . Crewe, v. Eahkvcrc, 
1703. Chtmy v. //////, Amb. 526. Mcody 5 Term Rep. 104. And fee (as in fome 
▼. M.idy. Ami. 649. ineafure connected with this point), the 

(2) Vide Martin ex dem. Tre^rnwell, cafe of ///// v. Lroughton, 3 Bro. Cba. 
Y. Strachan, z Stra. 1 179. I IVilfon 66. Ca. 180. 

S. C. 4 Bro. Par. Ca. 4S6. 5 Term Rep. 

2 mentj 



agreement*, article*, an* Covenant*. *» 

menti but here is a proper confideration as appears in the re- Stapiltok ▼« 
cirai of the deed of 1724; neither is it the common cafe of a TAFILT0M * 
baftard, for the law of England does allow of fome privileges to 
a bairard eigne, and their parents arc not punifuabic by the ca- 
non law for antenuptial fornication. 

In the cafe of Can:: v. Can:: ( 1 ), it was laid down by lord Mac- An agreement 
dtsjiild % that an agreement entred into upon a fuppofition of a ^"of arSiu" 
right, or of a doubtful right, though it after comes out that the though it may 
right was on the other fide, (hall be binding, and the right (hall afterward* come 

.. . n ', r 1 . r P • 1 -. out on the other 

not prevail againit the agreement 01 the parties, for the right ^ tf is binding, 
mud always be on one fide or the other; and therefore the com- andAaiinotpre- 
promife of a doubtful right, is a fuflicient foundation of an vailagainftthe 

* . ° agreement of ta$ 

agreement (2). ^ parties. 

Another objection has been made to this agreement, that the 
benefit on Henry and Philip's fide was not mutual and equal. 

During both their lives, the benefit and obligation was mu- 
tual, and Henry would have been equally compellable to fuller 
a recovery with Philip. 

But it is faid, that an alteration as to their mutual benefit 
has happened by the death of Henry, and it is faid, that if 
Henry had been legitimate the plaintiff would not have been 
compellable to fufTer a recovery, becaufe die iflue in tail is not 
compellable to perform the covenants of his ancefior the te- 
nant in tail (3}. j 

But here the chance was at firfr equal, and it is hard to fav, 
that the aft of God fhould hinder the agreement from being 
carried into execution ; the chance was equal, who died firit, 
Henry or Philip: it Henry had been legitimate, and Philip had 
died in Henry's life, leaving children, I am of opinion Philip's 
fon would have been intitlcd to have come again ft Henry for 
an execution of the agreement •, and therefore the chance was at 
firft equal on botli fides, and we arc not to confidcr how the 
event has happened. 

Another objcclion has been taken, that the father made ufc 
of his coercive power over Philip to force him into this agree- 
ment, and it is faid equity does not favour agreements made 
by compulfion. 

But this court always confiders the reafonablenefs of the 
agreement (4) : befides here is no proof of compulfion by the father; 
if there was any compulfion, it feems rather to have been made 
life of againit Henry, who was then efteemed his eldeifc fon, and T 1 1 1 
considering the cenfequence of fetting alidc this agreement, a 

(1) 1 P. IV. 727. S. C. (3) See Yir. Swill's cafe cited 1 FJ. 

(2) See CbeftajitlJv. 'Jan fen, pojl 354. 224. 2 VrJ. O54. 662. Hsycard v. 
PklLa V. P.cady, pcjl 2 vol. 592. Carry S:i,li>.;j-fet;' t p-ji. 422. 

f.Ccny, J FtJ. 19. Cole v. Gil*J*n % ibid. (4) o-:*c Bluhdil v. Barter, I P. TV. 

506. Ballard v f Ctv%ve, 3 Bvo. Cba. 659. (lory v. Cony, I Ft J. 19. Kin- 
fop. 117, (bant V. KLcbaui, 1 B,o. Cba. Ca. 309. 

court 



t» agreement*, article*, an* Covenant*. 

i 
Stapxltok t. court of equity will be glad to lay hoid of any juft ground to 
tapilton. carr y j t j nto cxecut ; on> an j to eftablifli the peace of "a family. 

His lordihip therefore declared, that the plaintiff is intitled 
to the lands and premises limited in remainder, to the firft fon 
of Henry Stapilton % his father, by the deeds of the 9th and 10th 
of September 1724, according to the ufes therein, and to the 
benefit of the covenants in thofc deeds, and decreed the defend- 
ant Philip to come to an account for the rents of the faid pre- 
mifles, and declared that Philip was intitled to hold the lands 
limited by the deeds of the 9th and loth of September 1724, to 
Philip the elder for life, with a remainder to the defendant for 
life, againft the plaintiff and his heirs, and that the defendant 
fhould make further aflurancc to the plaintiff of his part, and 
the plaintiff the like aflurance to the defendant of his part, and 
no cofts on either fide ( 1 ). 

* (1) Reg. Lib. B. 1738./*/. 44^ 



June the id. CJlet V. Collet. 

*749 

Cafe 3. T) Y a fettlemcnt made previous to the marriage of the. plain- 

jj tiffs mother, feveral fecurities for money belonging to her 

Byafettlement were afligned to a truftee, in truft within enc year after the 

te^tieft 1 far^^ ^ ate °^ ^ 1C f ctt ^ cment > or as f° on as conveniently might be after 
money belonging the marriage, to be laid out in the purchafc of a freehold cftatc 
to the wife were ; n j an( j s or houfes, to be fettled to the ufe of the hufband for 
tee'f "o be faid " hfe, to the wife for life, and to the firjl fon of the marriage \ and 
out in the pur- the heirs male of the body of fitch ftrftfon y with like remainders to 
chafe or* freehold ^ f ecom i an( j other fons of the faid marriage, remainder to 

lands, and let- * , . r i ,- i • • -i ^ 

tied among other the Iicirs female of the marriage in tail. 

ufes, to the firft 

fon in uil male, with like remainders to the fecond and other fons, remainder to the heirs female in tail. 
The father and mother die, leaving the plalnt'iff % two other fons and four daughter*. The 
cldeft fon now prays by his bill, that the fecurities may be afiigned to him, being tenant in tail, an^ 
not laid out in land. 

The father and mother died, leaving the plaintiff, two other 
fons and four daughters. The money in the faid fecurftiea 
were never inverted in any freehold land of inheritance, nor 
were any of the fecurities changed, • except only 1000/. which 
was inverted in a purchafc of a moiety of two houfes by the 
confent of the plaintiff's mother, and fettled to die ufes men- 
tioned in the fettlement ; and now the eldeft fon being tenant 
in tail prayed by his bill that the remainder of th_- faid fecurities 
might be afligned to him, and not laid out, becaufe, if lands 
were purchafed and fettled, he could, as tenant in tail, bar all 
the remainders over. 

Lord 



aommetitt, articled an* Catenae** 12 

Lord CbtncM* : The court is to execute the truft, and the < j? tllT Y * 
way to cany it into execution is to order the money to be laid " 1T ' 
out in land, and fince the cafe of Colwe/J r. ShadweU before Lord 
Cowper, it has been die conftant rule of the court to give the re- The content 
mainder~man his chance (i). But, on the brothers and fitters rule of the court 
of the plaintiff, who were in remainder, appearing in court and j^^^f^ 
confenting, his Lordfliip ordered that the fecurities, not already out in land, to 
inrefted in land, be afligned to the plaintiff, and that the repre- gw the remain- 
fentathre of the truftee do transfer them to the plaintiff to his own *22J" ^ t^ 
ufc, and pay him alio the intereft of fuch fecurities. brothers and 

fifters in this 
csjc afpesriog in court and confenting^ the representative of the truftee directed to transfer the fec«ri« 
tin to the fiafoufTt o«n nle, and nay him the intereft likewife. 

(l) So SJhrt r. Wnd t l P. IP. 470. v. Benfm> 1 P. W. 131. Edwards v. 

CimfUm v. Horner, ibid. 413. and the cafe Couateft of Warwick^ 2 P. IV. 173. 

of ■■ v. Marjb in note, ibid. 485. TrMjford V. Boebm, poft. 3 vol. 447. Cun- 

Cmmmmgbmm r. Moody, 1 Pe/l 176. C&b> ningbum v. Moody y 1 Fef. 176. Ex forte 

tbtrfe ▼. Gougb, 4 D*rn. & Emft joj. AT/*/, 2 Erp. Cba, Rtf. 160. Ctmtr* 

Ud fetus where the itfverfion in fee u in EjrtS% cafe, 3 P. If. 13. 
the tenant in tail hiafelf, and fee &*/•* 



Vox.. I. 



12 



agreements*, &ttfclc& an* Cotjciwntjs. 



TO. term I737> 
Jaa. 31. 

Cafe a. 



Git/on v. Patter/on and Others. 



A Bill brought for a fpecifiok performance of articles of 
agreement for falc of an eftate, and decreed in favour of 
the plaintiff, the vendor, without any regard had to the plain* 
tifFs negligence in not producing his title deeds (i), tiV. and 
not tendr'mg a conveyance within the time (2) limited for that 



Though tkc 

vendor of an 

eftite d«c8 not 

produce hit 

deed** or tender 

a conveyance 

yrithin the time limked by the ar titles* the court does not .regard this neglecl, but will decree t fale 

notwitb (hading. 



purpofe 



( 1) In 4 Bro. Cha. Rep. 33a. it is faid 
by* the Lord Chancellor *« that the vendor 
could not bring s atj aft ion agaiufi the vendee 
nvithrmt having tcndircd htm a conveyance" 

(2) In Lloyd v. ColUt, cited infra, 
Lord Loughhotough obfervejd, it appeared 
from Lord Hardwicke'* notes of the 
above cafe of Gibfon v. Patter/on, that 
upon an application being made in that 
cafe within the time by the plaintiff to 
the defendant to perform his agreement, 
the latter faid he would not ; but would 
go into Scotland 10 avoid being compelled 
{0 to do. It alfo appears from the bill 
as dated in the Regxiirr's book, that the 
defendant had agreed to let part of the 
Jands to the p! aim iff. The defendant 
in his anfwer fays, that he bad made 
frequent applications within the time li- 
mited for the completion of his purchafe 
to the plaintiff) in order to have the ::tle 
deeds or copies thereof produced, but 
that the plaintiff h;:d neglected (o to do. 
It is alfo obfervable, that the lands were 
in mortgage 1 and therefore the title deeds 
were probably in the mortgagee's pcfFrf- 
fion : but the mortgagee in h»a anfwer 
faid, that he then was, and always had 
fceen ready to join in the fale. Reg. Lib. 
ji. 1737. fol. 322. In Pincke v. Cuitij, 
4 Bro. Cha. Rep. 319. a fpeciric per- 
formance was decreed, though the ab- 
stract was not delivered till near three 
weeks after the expiration of the time 
appointed for the completion of the pur- 
phafe. But in Keen v. StuikUy, Gilb. 
Rep. 155. a fpeci fxc performance was re- 
futed after the time limited by the ar- 
ticles. The cafe of Lhyd and Young v. 
follett, 25th November, 1793, WaSthus; 



The plaintiff Young on the ad May, 

1792, caufed printed particulars and 
conditions of fale of the ground rents in 
que (lion to be delivered, and on that 
day the premises were put up to be fold 
by public au&ion: but they were not 
then fold. The defendant on the io:h 
of Auguft 1792 agreed, by writing in- 
dorfed on one of the printed particulars 
to purchafe the premises for 2609/. 17/. 
and the purchafe was to be completed on 
or before the 25 th of March, 1793 ; and 
Collftt paid the plaintiff* Young , the 
auctioneer, 100/. as a depofit. On the 
61 h of November, 1793, the plaintiffs 
filed their bill again It the defendant for 
a fpeciftc performance of the agreement, 
and for an injunction to re ft rain Coliett 
from proceeding at law in the action, 
which he had brought for the depofit. 
Qn the 16th of November, 1793, the 
defendant put in his anfwer, Hating the 
fo! lowing fatis, which as far as they re- 
lated to the conduct of the vendor and 
purchafer could not be controverted. 
He admitted the agreement; but faid, 
that he had frequently between the 10th 
of Augufl, 1792, and the 25 th of March* 

1793, applied to Young, to his clerk, and 
to Mr. H r oodecck, the plaintiff's folicitor 
for an abllract of the title : but he could 
obtain no a b draft relating theretp. That 
Jhortly after the 25th of March, 1793, he 
applied to Young for his depoiit with in- 
tcreft from 10th of Auguft, 1792. That 
Young having defircd him to write a letter 
to him, which he might (hew to Woodcock, 
the defendant 4th April, 1793* wrote a 
letter to Yung, infilling upon his depo- 
fit : that he repeatedly aupiicd for hi* 



agreement*, article*, ant* Csftenant*. 

purpofe by the articles ; Lord Chancellor faying, mod of the 
cafes which were brought in this court relating to the execu- 
tion of ankles for fale of an eftate were of the fame kind, and 
liable to this obje&ion, but thought there was nothing in the 
obje&ion. 

His Lordfhip decreed the articles to be performed and refer- 
red to a Matter to fee if a good title could be made by the plain- 
tiff of the premifles in queftion, and in cafe a good tide could 
be made, then the defendant to pay plaintiff's cofts to be 
taxed. 



*n 



GlltOtt r. 

PaTTSKSO*. 



depofit between 4th of April and 10th 
of Jumt 1793, when he brought his 
adion : that no abftrad was delivered or 
left with him till the 16th of September 9 
1793, at which time he was out of town. 
On the 25th of 03obei y the defendant 
upon his return to town wrote a letter to 
MW«ei, infilling, that he woald not 
complete his pnrchafe. He dated by 
his anfwer the value of the ground rents, 
and the value of the government long 
Muitiies at the time he entered into the 
agreement, and on the ) 6th of September, 
- 1/93 » And from thence he inferred, that 
the value of the ground rents was di- 
minifhed 560/. and upwards. That if 
he had -been furniflied with the abftradt 
in due time, he believed he could have 
re- fold the ground rents to advantage. 

A motion was now made for an in- 
junction to retrain the defendant from 



proceeding at law, and that fuch in- 
junction might extend to ftay trial. la 
iupport of the motion it was urged, that 
lapfe of time was not regarded in a court 
of equity. That it was an eftablimed 
principle, that fuch an agreement ought 
to be performed ; and that the delay ia 
this cafe was not equal to that which 
had occurred in many other cafes, ia 
which agreements had been decreed to 
be performed ; although it was morally 
certain that much greater delay muft 
happen, than had happened or could 
happen in the prefent caie. The counfel 
cited the cafe of Pinekc v. Curtis 9 fuprm^ 
and the cafes there cited* 

The Lord Chancellor confidered the 
conduit of the vendor as evidence of aa 
abandonment of his contrail, and re* 
fufed the motion. 



tt# 3fiacmott& attf oca stfo <Se*e tuutt*. 



(B) Pjro/ Agreements ) or fuch as are within the Statute of 
Frauds and Perjuries. 

Mil. tfr» i737t Clerk v. Wright. 

Cafe c. T* " ^ plaintiff had agreed for the purchafe of as eftate of 
5 * JL the defendant, but the agreement was not feduced into 
fmctulTaf 'an ^^ng ; however, in confidence of the agreement, plaintiff had 
cftite, but the given orders for conveyances to be drawn and engroffed, and 
agreement not WCIU fareral times to view the eftate : fome time after the dc- 
^ritUg j' though fcndantfent a letter to the plaintiff, informing him, that at the 
JL inconffcoce # time he cotitra&ed for the fale of the eftate, the value of the 
tuTior convey- ^ m ^ cr ^^ not known to hi^t afl d thai the plaintiff (hotdd not 
ncet to*??' have the eftate unlefs he would give him a larger price. 

drawn, and went 

Several times to view the eftate, thb court will not ctny loch agreement iat» execution, and the ftatvtc 

•frauds may be pleaded to a bill brought for that porpofe. 

t #I 3 3 The bill was brought to carry the agreement into execution, 
to which the ftatute of frauds afterwards was pleaded. 
A letter it not a Lord Chancellor allowed the plea, and obferved the letter 
a? 1 ** 1 **" COtt ^ not ** fnfficient evidence of the agreement! the terms of 
sg rcemcat/iui- * c agreement not being theiein mentioned ( i }• As to the ob- 
lefs the terms of je£tion that this agreement was in part performed, he allowed, 
^JJJJSoned * atw ' ien a man te k« poffeffton in purfuance of an agree* 
therein, but taent (2), or docs any aft of the like nature, the court will de- 
where a man cree an execution of it, but the circumftanfces only of giving 
5nHur P fu2n«° of dire&ions for conveyances and going to take a view of the eftate, 

an agreement, he thought not fllfficicnt ( 3 ) • 

the court will 

decree an execution of it. 

(l) So Scagoodv. Neale % I Stra. 426. 2P4. PTaalfordv. Fottbafy %Tem. 322. 

Cha. Pree. 560. 2 Ea. Ab. 49. //. 20. Finch v. Earl of Winchelfea^ l P. W. 277. 

Vifcountefs Montacuter. Maxwe% 1 P. W. Welfwdv. Beafely, poft. 3 vol. 503. 1 Vef 

618. 620. I Stra. 2 J*. S. C. Pree. Cha. 8. Allan v. Bonver, 3 Bro. Cba. Rep. I49. 

526. S. C. But if the letter contains the Tafvney v. Crawther, ibid. 161.318. 
terms of an agreement, or acknowledges or (2) Ltcon v. Mrtsns, poft. 3 vol. 4. 
refers to a former written one, then i t takes ( 3 ) . See Bawdes v . Amber ft y Pree. Cha m 

it our of the ftatute of frauds. See Moore 402. Hawkins v. Hclmes, 1 P. W.jyq. 

v. Hart, 1 Verm. 1 jo. zpi. 2 Cha. Rep % \£ Stakes v. Aloort, in note, ibid. 771. 



i 



Sgtccmcntjs, article^ mm Cofunant*. *j 



(Cj Voluntary Agreements \ in what Cafes to be performed. 

Edward Rufel, William Hayward, and others, Plaintiffs. November dw 
Elizabeth Hammond } and others, ■ Defendants. 2? * 73 " 

TH E bill was brought by the creditors of William and Cafe 6 * 
German Hammond deceafed, for a difcovery of their free- A fettlement a£- 
Aold, copyhold, and perfonal eftates, and to be relieved againft ^JJj^^'Jf 
the feveral fettlements of feveral parts of their freehold and a portion paid by 
leafehold eftates, which were made after the marriage of the wife's lather 
miliam Hammond with the defendant Elizabeth, without con- i^J^f^ 

i , . . n . ditors and not 

^deration, and fraudulent with refpedt to the plaintiffs as ere- within the Au- 
ditors, and to have the freehold and leafehold fold, and to g «utc x 3 £/». 
in aid of the other eftates of William and German Hammond f to- g^SSs'jzsJZ'S 
wards fatisfa&ion of the plaintiff's demands. * c 

The defendant Elizabeth Hammond infilled that about iT^O^^^yr^^^^ 
(he intermarried with William Hammond) but fuch marriage be- ^7 y^> ^& 

ing without the confent of Thtmas Stedman her father, he then ^ ' /-£^ 

rcfufed to give her any portion ; but afterwards William and € 

German Hammond his father, offering to make a fettlement on >* _• </£**-£ 
her f Thomas Stedman agreed to pay 300/. as her fortune, and" <?\ ^ 

by indentures of lea fe andreleafe of the 1 6th and 17 th of April /*s£**'Y?' y ' 
1722, in confideration of 200/. a freehold eftate was fettled on J>//s • 

William for life, with remainder to Elizabeth for life, with re- 
maindcr to the firft and other fons of the marriage, with remain- 
ders over, and by two other indentures dated refpc£liveiy the laid 
17th of April 1 722, in confideration of 100/. then paid or fecured, 
fjveral leafehold eflatcs of William Hammond were fetth-d in like 
manner. Since which William Hammond was dead inteftnte, 
leaving defendant and four children : that the 20c /. was paid by 
her father on the execution of the fettlements, and the* remain- [ 14 1 
ing 100/. was paid foon afterwards. 

Upon the 25th of February 1 734, this caufe was heard be- 
fore the Matter of the Rolls, who decreed an account of the 
perfonal efiate of William Hammond^ and that the fame fhould 
be applied in payment of what the Matter fhould certify to be 
due to the plaintiffs, and all other the bond creditors of Wil- 
liam Hammond in a courfe of adminiftration. The fame direc- 
tion with regard to the perfonal eftate of German Hammond. 
And if the prrfonal eftates were not fuffictent to pay the plain- 
tiff* and other bond creditors, then his Honor declared, that 
the fettlement Co made of the leafehold eftates was fraudulent 
with rcfpccl to the creditors, and ought to be fet afide; and that 
fuch part of the 'leafehold as was the proper efiate of German 
Hammond, at the time of makiog the faid fettlements, mould 
be applied in fatisfa&ion of fuch of his bond creditors, as his 
perfonal eftate fliould fall fhort of fatisfying. The fame di- 
rections 



»4 agreement**, article*, attti Covenant** 

Kusitv v. re&ions with regard to William Hammond's leafehold eftates, 
M0KD * as were his proper eftate at the time of the fettlements, and 
Elizabeth Hammond was to come to an account for the ferns of 
the leafehold eftates, and if there fhould not be fufficient to 
pay die bond creditors, then that a competent part of the leafe- 
hold eftates of German and William be fold, and the money ap- 
plied to pay the bond creditors, and ordered that the matter of 
the bill that fought to impeach the fettlement of the freehold 
eftate, and to make the fame liable to the plaintifPs demands, 
fhould be difmiflcd without cofts. 

From which decree Elizabeth Hammond appealed, and infilled 
the decree ought to be rectified as to the account directed 
againft her of the rents and profits of the leafehold eftates ; for 
that it appeared by the proofs in the caufe, that the 200/. was 
paid down in fpecic at the execution of the articles by die 
defendant's father, and that the 100/. was afterwards paid by 
him to William and Gcrmafi Hammond % and dierefore the fet- 
tlement of the leafehold eftates was not fraudulent, nor ought 
defendant to account for the rents and profits thereof, and 
for that by the faid decree, the plaintifPs bill, fo far as it 
fought relief againft the fettlement of the freehold, was dif- 
nrifled without cofts, notwithftanding the conlideration was 
proved to have been paid, and for that ihe had poflefled no 
part of the perfonai eftate of German or William, and her an- 
fwer was in no fort falfified; for which rcafons the bill as 
againft her ought in general to have been difmifl'ed with cofts, 
and therefore prayed die decree might be redificd in all fucli 
particulars* 

Lord Chancellor : There is no evidence whatfoever in the 
caufe to impeach the fettlements of aflual fraud. 

But what the plaintiffs infill on, is, That German Hammond 
was largely* indebted at the time of making the fettlements on 
William the fon, and that therefore thefe fettlements were frau- 
dulent upon the ftatute of the 13 d* of Efiz. e. 5. which regards 
creditors only. 
r x - ■] I muft confider this aft of parliament as it would have been 

confidered at law, for I will not lay down any other rule of 
conftruction, in equity, than is followed at law upon this ftatute. : 

What is prayed by the creditors, is the application of theft 
leafehold terms as aflets for the fatisfaftion of their debts. The 
prefent is a cafe of general creditors, and not of mortgagees, 
judgment creditors or purchafers ; and therefore not fo ftrong, 
as where a man has paid his money for the fame eftate ; which 
would have brought it within the ftatute of the 27 EUz. cap. 4. 
which makes every conveyance made for the intent to defraud 
purchafers, for a good consideration, to be utterly void (x). 

(I) See Walker v. But rows, fo/i 94. 

There 



agreement*, $ttfcle*, anu Covenant*. 15 

There are three fettlements in queftion, the firft of a freehold **••«. v. 
eftate, the fecond of a leafehold cftate called Ford, and the Ham *°* p - 
third of another leafehold eftate. 

William Hammond the fon married the daughter of one Sted- 
man without the confent of the fathers of cither fide, no articles 
nor fettlemjnt were made before the marriage j Mr. Stcdman af- 
terwards propofed to German Hammond to give 3c o/. as a por- 
tion with his daughter, if he would make an adequate fettle- 
ment; afterwards a kind of furvey was taken of the premifles 
propofed to be fettled, and therefore the fettlement was not 
merely colourable. 

The confideration for fettling the freehold is 200 /• paid ; 
there is no pretence to impeach this, it is a fair tranfadion as 
can be (1). 

The fecond is a fettlement of the leafehold eftate called Ford, 
made in confideration of the marriage already had, and for the 
confideration of 100 /. paid, or fecured to be paid. 

The queftion is, Whether this ihall prevail againft the credi- 
tors of German as a good fettlement ? 

A great deal has been faid upon this head, but it depends upon 
circumftances, and every cafe varies in that refpe&. 

There are many opinions that every voluntary fettlement is A fettlement 
not fraudulent \ what the judges mean is, that a fettlement ^^^"^Jf* 
being voluntary is not for that reafon fraudulent, but an evidence rc «,fon fraudu- 
of fraud only. Boveyz cafe in 1 Vent. 193. 1 Md. 1 19. l«nt, butanevi* 
Ld. Tenham v. Mullim. Though I have hardly known one cafe, J^'^^? 
where the perfon conveying was indebted at the time of the con- hardly a cafe, 
vcyance, that has not been deemed fraudulent j there are, to be * hcre the .P cf - 
fure, cafes of voluntary fettlements that are not fraudulent, and ww Indebted** 
thofe are f where ihe perfon making, is not indebted at the time ; the time that it 
in which cafe, fubfequent debts will iiot ftiake fuch fettlement (2). ^^d fV^du- 

lent. 
A voluntary fettlement it not fraudulent, where the perfon making it is not indebted at the time, not 
*U1 fubfequent deba (hake fuch fettlement. 

But I will not enter into a nice difquifition, Whether every [ 16 3 
voluntary fettlement is, or is not, fraudulent ? Becaufe I think, 
as to the Ford e tare, there was a valuable confideration, upon 
the face of the fettlement, for t^ie father was tenant for life, and 
the fon intitled to the reverfion in tail f 3^. 

And where father and fon join in a marriage fettlement, it is 
a bargain for a good and ( valuable confideration, and has been fo 
held in feveral cafes ; but then the queftion is, Whether it has 
been extended to creditors. 

(1) Styleman v. /fjbdown.poft 2 vol 479. fettlement with a view to his being in- 

(2) So Shaw v. Lady Standi jb, 2 Vera, debted at a future time Styleman V. 
327. Walker v. Burrows, po/l 93 . Mid- sJbdoziH, pofl 2 vol. 48 1 . Fitzer v. fitzsr, 
4Ucom V. Mar lew, po/l 2 n.ol. 520. ibid. 5 I I .' Taylor v. Jones \ t bid. too. 
lord Town/end v IVj*dbam, 2 Pef. 10, (3) This does not appear in the Re- 
It. Stephens v. Olive, 2 Bro. Cba. Rep. gilter's Book. Indeed Lord Hardwiche 9 * 
Jo. Sectis if indebted at the time, reafons refpedting the Ford eftate feem 
Memmuni v. Thorpe. I Kef 27. Or if rather to ^pply to freehold than to leafehold 

^ there appear any badges of fraud to de- property. 
^— ^ creditors, as if a man make a 

\ c \* 



if agreement article*, anu CoUenanw. 

Ruuit *. In the prefent cafe, the fon could not have fettled the refi- 
Hammomo. d uar y intereft, without the father's help, becaufe he was te- 
nant in tail in reverfion, and not in pofleflion ; but if the fa- 
Where the fa. ther had been tenant for life, and the fon tenant in fee, and 
ther tenant for h a( j joined in fuch fettlement, it would have made a material 
&aatin fee? jofn difference, for then I fhould have thought this good again (I 
in a fettlement, creditors 5 for there was no occafion for the foil's joining, as 
otditon^'the * c *° n m ^ 1 ^ avc difpofed of die refiduary intereft without 

fen might have him. 

difpofed of the 

fe&duaryinttrt ft without the fathers joining. 

I am of opinion befides, here is a fair pecuniary confuleration, 
as there was a fum of money paid, amouncing to i oo /• by 
Stedman to German Hammond^ and, when paid, expreflcd to be 
on account of the third I oo /. agreed to be given by Stedman as a 
portion, and no other account appears to have pafled between 
Sttdman and Hammond but this. 

As to the alignment of the other leafehold eftate, it is of a 
very different nature \ for it is expreflcd to be in confederation of 
the marriage, and divers other good confiderations. 

All the deeds bear date the fame day, and it is infifted it is 
inartificial, to fplit them into three. 

But I cannot think it is fo here *, for they have made the 

conflderation of the freehold 200/. and of the Ford eilate 100 /• 

and I cannot take in the conflderation of thofe deeds, whicli 

have a quid pro quo, and a conflderation of their own, to fupport 

a third deed. 

Where f ther ** ut * n *^ c ' a " fett' emcnt is a plain badge of fraud, for German 

takes back «n Hammond took back an annuity to himfelf and his wife for life 

annuity to the of 27/* which probably was the full value of the eftate com- 

fetTcwMised P" ZC< 1 m *k* s d cc d> and therefore gave the fon nothing ( 1 )j which 

In the fettle- is aimoft tantamount to a continuance in pofleflion, and has ai- 

mem, it it way 3 been deemed a ftrong circumftance of fraud (2). 

tsatommnt to ' x 

• continuance in pofleflion } and creditors wiU bt relieved again* f«ch fctttaatnt. 

Therefore I am of opinion the creditors ought to be relieved 
againft this fettlement. 

The decree was made in Feb. 1734, very near four years 
ago, and if I mould enter into the consideration of colts, I 
doubt I muft give the plaintiffs cofts before the Mailer, and 
though the bill, as to two of the matters, has no foundation 
for relief, vet as to a third part, Ws. die laft fettlement, it is 
as clearly for die plaintiff; therefore, for all parties, it will be 
better to drop the cofts. 

His Lordfhip therefore ordered the faid decree to be affirmed, 
fave as to that part thereof which relates to the . fettlement 
of the leafehold eftate called Ford\ and as to the plaintiff's bill, 
fo far as it fecks to impeach the fetdement of that leafehold 

(1) This laft fettlement does not ap- (a) Twy»'* cafe, 3 Co. 80. b. Taylor 
pear 10 Rer. Lib. B* 1738. foL 209. v. Jrnus^ fofl z voI.6co. 
wbsre the above cafe is fiaced ; bat very 
fhortfy. 

eftate, 



agreement*, article*, ana Cofwttftttt*. 17 

elbte, and to make the fame liable to the plaintiff's demands ; * ut,lt ▼• 
his Lordfliip difmiffed the fame without cofts. Ha**©**. 

And as to the cofts of the reft of this fuit, that the faid decree 
whereby the fame are referved till after the faid report, be varied 
as follows : that to the time of hearing this caufe at the Rolls, 
no cofts be paid on either fide, but that the confideration of cofts 
of fuch other parts of this caufe from fuch hearing, be referved 
till the Matter (hall have made his report ; the ten pounds depofit 
to be paid back to the defendant (1). 

(1) Reg. Lib. B. 1738. /*/. 209. 



% (D) Gmcerning the Manner of performing Agreements. 

Arthur (TKeeffe Efq; and Ifabella his Wife, — Plaintiffs, 

James Calthorpe Efqj •— Defendant. , 739 . %7 ' 

TH £ plaintiff Ifabella being poffeffed of Old and New South Cafe 7. 
Sea annuities and Bank ftock, and a marriage being in- where childrwt 
tended between the plaintiffs, previous thereto, the plaintiff ^Si- under iminutc 
Mia, for fecuring the (locks and dividends for her feparate ufe C £%^*^ 
and difpofal, notwithftanding her coverture, did by indenture, tingent adran* 
with the privity of the plaintiff Arthur, transfer the (locks to the «V» &• court 
defendant, his executors and adminiftrators, in truft that he, his ^ th^^rejudlc« 
executors and adminiftrators (hould pay, or fufler plaintiff Ifabella ©f theifluc ^ 
to receive the dividends and profits thereof for her feparate ufe du- m*»i«s«- 
ring her life ; provided, that if Ifabella furvived Arthur, then the 
defendant, his executors or adminiftrators (hould transfer the 
fame to the plaintiff Ifabella, her executors or adminiftrators, or 
to fuch perfon as (he (hould, apart from her hufband, by deed or 
will appoint, and for want of appointment, to the iffue of her 
body, and for want of fuch iffue, then as to one moiety of fuch 
of the ftock as (hould be remaining at the death of Ifabella, in 
truft for the plaintiff Arthur, his executors and adminiftrators ; 
and as to the other moiety in truft for the defendant, and one 
John Burrell the brother of the half blood of Ifabella, their exe- 
cutors and adminiftrators. 

The marriage took effect, and plaintiff Ifabella by Arthur 9 * con- 
lent applied to the defendant to fell part of the annuities, and to ' 
pay the money to her, and to affign the truft to fome other trus- 
tees \ declaring to him it was not her intention that the fame 
(hould be unalterable, but only to preferve the fame in her own 
difpofal ; but the defendant infifting he could not fafely fell the 
fame or affign his truft without the directions of the court of 
chancery, the plaintiffs therefore by their bill pray that the de- 
fendant might affign his truft, and that the ftock and annuities 
aught be transferred, fubjeft to fuch ufes as Ifabtlla alone (hould 
from time to time dire<3, and for want thereof, fubjtft to the 
trdbinthcfcttlement^ 

Ca lord 



IS 



agreement*, aitfcle*, anil Covenant*. 



&Kt%rrtr. 

Calihoafi. 



Hie court will 

not change a 
mere truftee 
/or a wire under 
a marriage fet- 
tlcmcnt, with- 
out feuding it 
rlrft to the maf- 
ter, to fee if the 



Lord Chancellor : Where under a marriage fcttkment, the chil- 
dren have obtained a contingent advantage, I will not vary it to 
the prejudice of the iffue after the marriage ; if I (hould, I might 
fit here only to alter marriage agreements upon the particular 
whim of a feme covert* Therefore let the plaintiff Ifabella make 
the appointment, and let the appointee take fuch intercft as the 
law will give him ; for I (hall not lend him the afliftance of this 
court to make fuch appointment more effectual than it will be 
at law. , 

A perfon might as well bring a bill in this court to change 
truftees to prcferve contingent remainders ; if the defendant had 
been merely a truftee for the lady, there might be fome grounds 
for this application ; though if 1 was inclinable to change the 
truftee, I would not do it unlefs it went firft before the M after to 
examine, Whether the perfon propofed is a proper perfon. 

perfon propofed is a proper perfon. 

A new truftee being by the confent of all parties added to the 
old one, his Lordfhip decreed the defendant to transfer the an- 
nuities in queftion in fuch manner, as to veft the fame in him- 
fclf and the new truftee, fubje& to the fame trufts as arc in the 
faid deed of agreement ; and decreed that the plaintiff'* bill 
fliould be as to other matters difmiflcd ( i ). 

(i) Reg. Ub.B. 1739. fol.jfi. 



CAP. VII. 

at>mfnfffrato;0. 

Vide title Executors. 



[ '9 3 



Pec ember the 
lift, 1737. 

Cafe 8. 

Theperfontof 
foreigners, fub- 
jecl to the autho- 
rity of chis court, 
only while in 
JSngUnJ) but 
though thcirpcr- 
■ fans are out of 
the reach of this 
court, yet the 
property they 
have here in the 
fnois, Si under 



CAP. VIII. 

Mien. 

Anon. 

yi Foreigner in the ting of PruJJtJ'% fervice applies to the 
fTL court, to compel his wife, now refiding at Datitzick> to de- 
liver up his children ; one of 15, and another of 13 years of age, 
to be educated by him as having a natural right to the care of 
them. A bill was brought fome years ago by the wife, who had 
then been feparatcd from her hufband a confiderable time, to have 
an allowance out of (locks here in England, belonging to her, for 
the maintenance of the children ; which was decreed accordingly. 



the controul of it- 



Lord 



aifen. 19 

Lord Chancellor : I have no power over the perfons of foreign- Amohymowi. 
ers any longer than while they are in England, for then they owe 
a local obedience; but as they are now in foreign countries, my 
authority will not reach them ; but though I cannot come at their 
perfons, yet I might lay my hand upon any property they have 
here in (locks* &c. but as a fum of money has been already or- 
dered out of a fund belonging to the petitioner's wife, for the 
maintenance of her children, I cannot make any alteration in 
that order, while the children continue under hercuftody, for it 
is given merely upon their account, and not the mother's. 

Ramkijpnfeat of the Town of Calcutta, at Fort 1 p, . .«• 
William in Bengal and others, — — J a,,Ul Sf reembtr tht 

Hugh Barker an Infant, by his Cuardian and 1 r\ r 1 t 4 ' ,?39# 
others, et e contra. J e en an s. s Q ^ 5t 

IT was moved on behalf of the plaintiff in the original caufe, Cafe 9. 
that he may be at liberty to fue out duplicates of the com m if- The court di- 
fion, to take his anfwer to the plaintiff's bill in the crofs caufe, £^ n * t ^e 
and that the commiflioners may by fuch commiffion be im power- &<* indies, to 
cd to fwear an interpreter, to interpret the oath to the defendant take the anfwer 
in the crofs bill, and to tranflatc his anfwer from the Bengal*^?***'- 

»i • Vi fit »i- . r, i« 1 r 1 rr % \ ant to tne crou 

•language into EngJi/b, if it (hall be found neceflary, and that bill, who wuoF 
thefe words corporal and upon the holy Evangelijl may be left out ** G*moo reii- 
of the commiffion, and inftead of the latter words, on a proper J^tedtwoor 
oath in the mod folemn manner, or fome other proper words, three of the 
aid agreeable to th? circamtances of the defendants' cafe, may w m ™ffidne«ta 

. . ? . . . . * * adminilter fuch 

be lnierted in their room. oath in tbt meft 

fiiemn manner, at 
ta their difcretioos (hall (eem meet; and if they admtniftred any other oath than the Chriilian, to citify 
t» the court wrut was done by them } that, if there ihould be any doubt as to the validity, the opinioa 
af the judges might be uken. 

In fupport of the motion was cited I Vern. 263. Anon. [ # 20 ] . 
Where a Jew was ordered to be fworn to his anfwer upon the yfy^ Jt 
Pentateuch, Hale's 2d Part of the Pleas of the Crown. 279. jjh—-^' 

Lord Chancellor : It depends upon what is admitted on the y^y" 'S ^ 
other fide, that the defendant in the crofs caufe is of the Gentoo "y^ 

religion, and an idolator. ' • sSf^rro 

I have often wondered, as the dominions of Great Britain are fo ^ cx ^ 4? 
extenfive, that there has never been any rule or method in cafes 
of this fort. 

The general rule is, that all perfons who believe a God, are Definition of am 
capable of an oath ; and what is univerfally underftood by an oath - 
oath is, that theperfon who takes it, imprecates the vengeance of God 
upon him , if the oath he takes isfalje. 

It was upon this principle that the judges were inclined to 
admit the Jews who believed a God, according to our notion of 
a God, to fwear upon the Old Teftament. 

And Lord Hale very juftly obferves, it is a wife rule in the 
kingdom of Spain \ that a heathen and idohtor (hould be fworn 
•poa what he thinlu is the moil facred part of his religion. 

C3 H 



to QIfen. 

*Auziiitw« If a Jew (hould be indited for perjury, and it is laid in the in- 
Saiki*. diSment that he fworc taclis facro-fan&is Dei evangeliis ; yet ac- 
cording to Hale the word evangeliis in the indi&ment may be an- 
fwered by the Old Teftament, which is the evangelium of the J*vju 
In order to remove the difficulties in this cafe, I (hall diredl 
that thefe words, upon the holy evangelifls, may be left out* 

The next confederation is, What words mult be inferted in their 
room i Now on the part of the plaintiff in the crofs bill, it is 
defired,' that I fliould appoint a folemn form for the oath : I 
think this very improper; becaufe I may poffibly dircd a form 
that is contrary to the notions of religion entertained by the 
Gentoo people. 

I will therefore make this rule, That two or three of the com- 
miflioners may adminifter fuch oath in the mod folemn manner, 
as in their discretions (hall feem meet •, and if the perfon upon 
the ufual oath being explained to him (hall confent to take it, 
and the commiffioners approve of adminiftring it (for he may per- 
haps be a Chriftian convert) the difficulty's removed ; or it they 
(hould think proper to adminifter another oath, that then they 
(hall certify to the court, what was done by them, and that will 
be the proper time to controvert the validity of fuch an oath, 
and to take the opinion of the judges upon it, if the court 
(hould have any doubt. 

The words corporal oath may (land, for lifting up an arm, 

or other bodily member. This will come up to the meaning of a 

tirDai&yJlfAr* corporal oath ; but upon the Attorney GeneraPs fuggefting that 

r 1 there might be no ceremonies in their form of taking oaths, 

*■ J thefe words were likewifc left out, and the words moft folemnlj 

to be inferted in their room (i). 

There was likewife a crofs motion for Barter the defendant in 
the original and plaintiff in the crofs bill, that all further 
proceedings in the original caufe may be ftayed until the plaintiff* 
in the original caufe/ and the defendant in the crofs caufe, (hall 
have fully anfwered the crofs bill. 
The court will Lord Chancellor : The general rule in this court is not to (lay 
not fUy proceed- proceedings in an original caufe, till the anfwer comes in to 
nTcwfc^ii" t5lc crofs blll » but t0 fta y P uWi cation only {2). Indeed it .would 
theanfwe'rcomii have been of courfe to (lay proceedings in the original caufe, 
into the crof* jf t he plaintiff in the crofs caufe had brought his bill, before he 
S fa/Srfi. had put in an anfwer to the original bill (3 ). 
cation. In the caufe of Omychund v. Barker , & Franco v. Barker ', 

there were two more orders of the fame day to the fame pur- 
pofe. 

(l) The commiffioners were em- u commiffioas, and in (lead of the latter 

powered, " to fwear an interpreter to " words, the word (fitemnly) be infert- 

" interpret the oath, and interrogatories " ed." Reg. Lih. B. 1739. fol. 61. 
44 are to be exhibited to the plaintiff's (2; Ordered, " that publication in 

•* witneffes at each of the faid^commif- " the original caufe be enlarged, until 

44 (ions, and alfo to interpret their depo- " the plaintiffs in that caufe (hall have 

" (ition» to the faid interrogatories, and " fully anfwered the (aid crofs bill/* 

44 that thefe words (cirporal) and (upon Reg. Lib. B. 1739. /*/. 61. 
" the hofy evamgelijl) be left out of ftich (3) Fjt. 291. Ctefwick v. Crefrsick. 



auen. at 



Omychund v. Barker. Michaelmaa 

term, 1744. 

PUrfuant to the order above of the 4th of December 1739, a 397.pl. 15. 
commiflion went to the Eafi Indies, and on the 1 2th of s - C. x Wilf. 
February 1 742, the commiflioriers certified, that among other H2*Cc?Li^6! 
witnefles for the plaintiff, they had examined Ramkijfenfeat, and b. 
Ramchumecooberage, and fevcral others, fubje&s of the Great Cafe io« 
Mogul, being pi rfons who profefs the Gentoo religion, and LordChanctifcr 
that they were folemnly fworn in the following manner, viz. affiftedbyLord 
14 The feveial perfons being before us, with a bramin or prieft [^ <fc f i"c 
11 of the Gentoo religion, the oath prescribed to be taken mila $ and Lord 
" by the witnefles was interpreted to each witnefs refpec- Chief Baron m 
" tively j after which they did feverally with their hands touch 2jjf2itdiedt- 
11 the foot of the bramin or prieft of the Gentoo religion, be- pofitionofwit-* 
" ing alfo before us with another bramin or prieft of the fame «ffletof the 
"religion, the oath prefciibed to be taken by the witnefles was SSnacwS^* 
" interpreted to him t after which Neenderatn Surmab, being to their cereao- 
" himfelf a prieft, did touch the hand of the bramin, the fame Jj^ a ^J2J? % 
" being the ufual and moil folemn form, in which oaths are camftancet of* 
" moft ufually adminiftered to witnefles who profefs the Gentoo this cafe to be 
" religion, and the lame manner in which oaths are ufually fafacvtfu** 
" adminiftered to fuch witnefles in the courts of juftice, erc&ed 
u by letters patents of the late king at Calcutta." t , £*&&<? . 

The eaufe came on this term upon the merits, and the bill ,^ 

was brought to have a fatisfa&ion for 67,955 rupees, amounting •O^,^ 
to about 7,600 /. Engli/b money, from the cftate of the late Mr* l ' "^ '" " ^ 
Barber, the father of the defendant. 'y ■&?■"'•' ^>a 

Mr. Barker in July 1729 being appointed, by the Eaft-India ' / 

Company, Chief of Patna, applied to the plaintiff, who was a 
confiderable merchant, to be engaged in partnerfhip with him 
in the fale of goods. 

The plaintiff 1 was to advance the money for buying the goods, L 21 J 
and in confideration thereof Mr. Barker was to allow him in- 
tereft upon a moiety at I a /. per cent. 

The goods were fold by Mr. Barker for a great profit, and 
the whole money received by him \ but he refufed to come to 
any account with the plaintiff, upon which he filed his bill in 
1736, in the mayor's court at Calcutta, and when the caufe was 
ready for hearing there, Mr. Barker left Calcutta, and took his 
paflage in a French Eajl-India {hip for Europe, and upon his 
withdrawing himfelf, the court at Calcutta interpreted it to be a 
Sight from juftice, and decreed that lie fliould pay plaintiffs 
demand in full, and all his cofts. 

Mr. Barker died in the voyage, but by his will made on the 
Sift of December, 1736 charges his real and perfonal eftatc with 
the payment of his debts. 

The end of the bill was, that all books and papers relating to 
die dealings between Mr. Barker and the plaintiff might be pro- 
duced, and thiat the fum before mentioned might be paid with 
fthfrtpifnt intcreft, and the cofts in the mayor's court at Calcutta. 

C 4 Mr. Attor- 



t2 Qlfrn. 

Ourenvifh Mr. Attorney General for the plaintiff offered to read the de« 
v. BAftKtft. p f lt j 0n f Ramkffinfeat, but the counfel for the defendant objeft- 
%i*Dudl<yRidtr. ^ to ^ being a p r0 p er witnefs, Lord Chancellor ordered the 
commiflion and the return to be read, and Hkewife the letters pa- 
tent, bearing date the 12th of Sept the 1 3th of the late king. 

Mr. Tracy Athyns argued in fupport of the obje&ion, 

\ft % That as the law of England now (lands, no oath can be 
adminiftred to make a man a competent witnefs, but the oath 
upon the Evangelifts. 

%dly % That it would be contrary even to the rules of equity to 
admit any other* 

The fubflance of this argument follows : 

1 will endeavour to (hew, from the oldeft authorities extant 
down to the prefent time, that the rule has been uniform and in- 
variable as to the particular oath required. 

Fleta f lib. 5. r. 22.^. 344. <€ Juramentum ejl afjirmatiovel negatio 
" de aliquo atteflatione facne rei jirmata* fo that as long ago as Ed. 
the Firft's time, which is at lcaft 400 years, the general definition 
of an oath was the perfon's a {firming or denying a thing, with a 
folemn appeal to the facred writings for the truth of what he faid. 

Braclon % fol. 1 1 6. the oath that was adminiftered by the juf- 
tices itinerant, to the jury, fummoned to inquire for the crown, 
agrees exa&ly with this definition : " Hoc audite jujtitiarii y quod 
" ego veritatem die am de hoc quod a me inter rogabitis ex parte domini 
€t re & ts * et Jideliter faciam id qu.d mi/A pracipieth ex parte domtni 
" regis et pro aliquo non omit tarn, quin it a faciam pro poffe meo \ Jic 
u me Deus adjuvet, et hac fantla Dei evangelia" 

Briton de Challenge de Jurors •, r. 53. p. 135. defcribes the oath 
thus ; u Que jeo verite diray, Ji Dieu mot aide IS lesjeintz, fa* 
'• p'fout Us evangelies beyfes touts boors Jtcome notrefoy IS notrefauva* 
« tion." 

In Forte/cue de Laud* Leg. Anglia, c. 26. p. 58. oftavo edition, 
intituled, How jurors ought to be informed by evidence and 
witnefles, he fays, " Et tunc adducere potefl utraque pars coram 
I 2] ] " eifdem juftitiariis et jttratis, omnes etfingulos tefles % quos pro par* 
" tefua producere velit, qui fuper fantla Dei evangelia, per juftici- 
u arios oner at i, teftificabuntur omnia qust cognofcunt probantia veri- 
u tatemfatli, de quo partes contendunt." 

So that your Lordfhip fees it is omnes etfmgulos te/les f without 
any exception of pcrfons whatsoever, qui fuper fantla Dei everngc- 
lia onerati te/fifcabuntur* 

Lord Coke in his 2d Injlitute 479, upon the ftatute eAWeflmin- 
fltr the 2d, fays, " A new oath cannot be impofed upon any fubjetl 
€i without authority of parliament, but the giving of every oath mufl 
u be warranted by aEt of parliament ', or by the common law time out 
" of mind" And in the 7 19th page of the fame Injlitute in the 
,c margin, u None can examine witneffes in a new manner ', or give an 
€l oath in a new cafe, without an atl of parliament! 9 

And in his 3d Injlitute, c. 14./. 165. intituled, Of Perjury t 
Subornation of Perjury, and incidentally of oaths, faith, that 
the word oath is derived fronuhe Saxon word Eotb, and that it is 
expreffed by three feveral names, ifi,facramentum afacri IS mente 

becaufc 



Qlfett 25 

beeanfe it ought to be performed with a facred and religious Ourcnv** 
mind, quia jurare eft Deum in teftem vocare, et eft afius divini cultm • w * **"**• 
:dljr, by juramentum m jure, which fignifieth law and right, be- 
caufe both are required and meant, or becaufe it mrtft be dene with a 
jtift and rightful mind* 3 dly , jus jurandum a jure etjurando. 

And in the very next fe£Hon he faith, An oath is an affirmation 
tr denial, by any Chriftian % of any thing lawful and hotiejl, before 
m or mere that have authority to give the fame for advancement of 
truth and right, calling Almighty God to witnefs, that his tflimony it 
true. So as an cath is fo facred \ and Jo deeply concerneth the confcietices 
tf Chrjftum men, as the fame cannot be miniftred to any, unlefj the 
fame be allowed by the common law, or by fome act of parliament ; 
neither can any cath allowed by the common law, or by acl of parlia- 
ment ^ be altered but by acl of parliament ; it is called a corporal oath, 
bemife he toucheth with his hand fome part of the holy fcripturet. 

In the 4th Inftitute, c. 64. p. 279. he fays, An o*th ought to be 
accompanied with the fear of God and fervice of God, for ad- 
naccment of truth, Dom:m:tn Deum tuum timebir, et illi folifer- p&t. &ap. tu 
vies, etper nomen illius jurabis, taken out of the Mofaic law ; and ▼• | 3- 
tnc words immediately following are, Bratlon faith, That an alien » 

hrn cannot be a witnefs, which is to be understood of an alien infidel % 

I (hall beg leave to mention a ftatute made in the 21ft of 
Hen, B* c. 16. touching artificers ftrangers, in the 4th fedlion 
of which 'tis enacted, that the fame fir anger s Jhould, upon lawful 
warning to them given, by the wardens of divers mift cries, within the 
cities and towns, prefent themf elves to the common hall of the J aid 
crafts, and there to receive and take their oath, and be fworn before 
the wardens upon the holy evangelifts, to be true to the king, &c. 

So that notwithftanding aliens and ilrangers are the fubje£U 
of this a& of parliament, yet without refervation of any form of 
ceremony in their own religion, relating to oaths, they are direct- 
ed to take the oath upon the holy Evangelifts : fo that the legifls- [ 24 J 
ture governed themfelves by the law as it then flood, and faw no 
reifon to alter it for the private convenience of particular perfons. 
I appeal to your I ordfhip's judgment, whether the people 
who are offered ah witneffes, are capable of taking an oath, as 
thx hw of England conceives of it. The mod authentic hiflo- 
ries of this part of the world reprefent the natives as extremely 
ignorant, and particularly with regard to their notions of re- 
ligion, abfurd and ridiculous, and in their ideas of the Deity 
fo grofs, that it would be (hocking even to mention. How then 
can they be faid to perform fuch a ceremony with a facred and 
religious mind, which th- word facramentum implies? 

It appears by the certificates of the commiflioners, and even 
by their own witnefles, who may be fuppofed to reprefent it in 
the mod favourable light, that the ceremony is for the perfon 
who fwears to fall down, and touch the foot of the pried with 
his right hand. 

Can this be faid Deum in teftem vocare ? Or '13 it aSus divini 
euttus T fo far from being accompanied with the fear [or wor- 
(hipof God, as au oath by our law ought to be] it is meanly 
prorating themfelves at the foot of a prieft, and calling upon 

the 



i 4 9Hett. 

Omychuwd the creature inftead of the Creator, and cannot poflibly raife 
v. Basksb. afi y Q ^ lCT emotions, but thofe of contempt and ridicule. 

It is faid too, that if fuch perfon (hall fwear any thing con- 
trary to truth, that be will be efteemed a vagabond* 

I do not know how far the people of India may be deterred by 
fuch an apprehenfion ; but I am confident great numbers of 
perfons here, would be fo far from thinking this a punifhment, 
that, if the only efie& of forfwearing themfelvea was being a 
vagabond, they would be more inclinable to break an oath, than 
to keep it* 

I do not find that the prieft tells us what are the general no- 
tions of the people, as to the belief of a God, but only thai be 
bimfelf believes in a Supreme Being ; of whom his fuperior abilities 
and education may have given him fome confufed knowledge ; 
and yet the bulk of the people who have not had thefe advan- 
tages may think quite otherwife. 

I (hall now beg leave to mention the later opinions. 

Mr. Serjeant Hawkins in his Pleas of the Crown, the lad (oho 
edition, 434, under the head of Evidence ; fays, it feems agreed 
to be a good exception, that a witntfs is an infidel. " That if, fays 
« he, as I take it, that he believes neither the Old or New Tef» 
" tament to be the word of God, on one of which the laws re- 
" quire the oath (hould be adminiflcrcd." 

1 expe£t we (hall be told by the Gentlemen of the other fide, 
of Sir Matthew Halts opinion in his Pleas of the Crown, 2 vol* 
279 5 and therefore I will read the pafiage, and fubmit to your 
Lordfhip ; it is rather in favour of what we contend for, than 
againft us* 

" It is laid down by Ld. Coke, (fays Id. Hale), that em infidel u 
" not to be admitted as a witnefi-, the confequence whereof would be that 
" a Jew who only owns the Old Teftament, could not be a witnefs. 
J 25 ] " But I take it that although the regidar oath, as it is allowed by 

" the laws of England, is ta&is facro-fan&is Dei evangeliis; 
t€ which fuppofeth a man to be a Chriftian : yet in cafes of necef 
t€ ftyt as in foreign contratls between merchant and merchant, which 
* c are many times tranfaBed by Jewifb brokers \ the tefiitnany of a 
" Je*o ta&o libro legis Mofaicae, is not to be rejecled, and is 
" ufed as I have been informed among all nations* 

" Tea the oaths of idolatrous infidels have been admitted in the mu~ 
" nicipal laws of many kingdoms ; efpecially, fi juraverit per Deum 
" verum Creatorem ; and fpecial laws are inftituted in Spain, 
cc touching the form of the oaths of infidels. 

" And it were a very hard cafe % if a murder committed ben in 
u England, in prefence only of a Turk or a Jew, that owns not the 
" Chriftian religion, fbould be difpunifhable \ becaufe fuch an oath 
*' Jhould not be taken which the witnefs holds binding, and cannot 
€t fwear otherwife, and poffibly might think himfelf under no obligam 
€< tion, iffworn according to the ufualflile of the courts of England* 

" But then it is agreed, that the credit of fuch a teftimony mitft be 
" left to a jury.** 

With deference to fo great a man, I do not fee the confe- 
quence drawn from Lord Coke'% pofition f that an infidel cannot bt 

a wit Heft) 



/ 



91fen. *$ 

Mwitrttff, therefore a Jew cannot be one\ for they believe a God, Omycbvw* 
juft in the fame manner the Chriftians do ; and the Old Tefta- v ' Ba*«*a, 
inent is as much the evangelium to them, as the New is to us ; 
*nd therefore widely different from the infidel, who has no no- 
tion of the true God. 

And this was the very reafon for admitting the evidence of 
Jews in the cafe of RoMey v. Langfion, 2 Roll. 314. " Nota\ 
" Wild, ferjeant, on evidence to a jury at Guildhall, yefterday, 
u (where becaufe tlie witneffes produced were Jews, Keeling 
M Chief Juiticc fwore them upon the Old Tcftament) defired the 
* opinion of the court, if this were any oath by the ftatute of 
" 5 Elix. that might be afligned for perjury 5 and^r curiam , it 
u is fo, and within the general words of facro-fantla evangelia ; 
u fo of the common prayer book that hath the epiftles and 
" sofpeli ; contra by Windham of a pfalm-book only." 

It was upon this I apprehend the court formed their opinion, 
and not upon a confideration of their being brokers in foreign 
contra&s between merchant and merchant* 

Ifukmit it upon the whole pafiage: Sir Matthew Hale does 
not pofitively fav, that, by the laws of England, a perfon who 
owns not the Chriftian religion, may be examined according to 
the form of his own religion, but is only commending the 
municipal laws of other kingdoms, and throws it out rather as 
a wifii, that the rule were to prevail here, in cafes of neceflity, 
than as bis opinion; therefore the utmoft which can be col- 
lected from what he fays is, that he thought it a 4efe& in our 
law. 

But though his genius and knowledge were equal perhaps to 
any one man of the profefficn *, yet I hope I may be allowed to 
put in the other fcale, the wifdom and experience of the great 
and eminent perfons, who for fo many ages before his time [ 25 ] 
have adhered to the form of an oath as the conftant and inva- 
riable rule* 

Befides the prefent cannot be called a cafe of neceflity, be- 
caufc there are perfons in India, privy to all thefe tranfa&ons, 
who are under no obje&ion, as to their capacity of taking an 
oath * bat the plaintiff knew very well, that natives of the fame 
country, engaged in the fame intereft, and the fame bufinefs 
with themferves, were much more inclinable to fwear for them. 
I will mention but one thing more upon the firft head, to 
Ihew your Lordfhip, that nothing but the legiflature can dif- 
penfe with the common and ufual form of oaths ; and that is 
the cafe of the Quakers, who had entertained a notion that all 
manner of oaths were unlawful \ and there is fcarce any error 
perhape that hath a more plaufible colour from fcripture than 
dtts» which made the cafe of thofe who were feduced by it, the 
more pityable j and yet, upon their refuting to take the oath in 
a court of juftice, to ufe the words of the preamble to the fta- 
tite of the 7 t5* 8 Will. c. 34. /. 1. for the relief of Quakers, 
toej were frequently imprif&ned, and. their eftates fequejlerea\%y pro- 
ofs of contempt ifusng outrffueb courts, to the ruin of them/elves and 



*6 alien. 

Ourcnvvw If the law of England, with regard to the form of an oa 
v.Baikik. was f ft r j^ that the judges did not think themfelves juftif 
in admitting the mod folemn affirmations and declarations 
the Quakers inftead of the oath, though in favour of perfi 
who agreed in the fubftantial and fundamental part of 
Chriftian religion with the church of England, and who are 
all refpe&s very ufeful and ferviceable members of the cc 
monwcalth ; I hope your Lordfhip will fee no reafon to d< 
in this cafe, where the perfons are proved by the plaintiff h 
felf to be infidels and idolators \ and whatever ceremony t 
may have in fwearing, it cannot be called a folemn and rel 
ous one. 

In the fecond place, I (hall endeavour to (hew, that it wc 
be contrary to the rules of equity to admit this evidence. 

And here 1 muft fubmit to the court, that in the admit 1 
this evidence, very great hardfhips and inconveniences n 
necefTarily arife to the defendant, and that he is brought i 
this court upon very unequal terms. 

Should your Lordfhip admit the depofitions of thefe witnc 
to be read, the plaintiff would have one manifeft advantage < 
the defendant ; that notwithftanding his witnefles fhould ai 
the groflcft falfhoods, and be guilty of the mod notorious pe 
ry, yet the defendants would be without remedy ; for there i 
indictment that could be framed againft them, which could 
fupported \ for I apprehend it to be a material ingredient in 
indictments of this kind, that per fe facro evangelio voluntan 
corrupt* commifit perjurium ; and that omitting thefe words wc 
be a fatal error, and quafh the indictment. 

If this cxprelTion be neceflary in the indictment, thefe 
nefles, let them be ever fo guilty, muft go unpunifhed ; f< 
[ 27 ] am afraid it will not be fufficient, to maintain the indictm 
to fay, that touching the foot of the priejl with his right h; 
voluntarii et corrupt} commifit perjurium* 

Upon the commifiion, your Lordfhip was pleafed to 
that you wondered as the dominions of Great Britain ar< 
large, and their commerce fo extenGve, and as things of 
kind muft have happened before, there (hould be no m&thot 
yet eftablifhed on fuch occafions. 

Whatever prudential reafons there may be to introduce 
new rules in future cafes, we hope that a^ courts of equity 
vern themfelves by the fame rule, with regard to admiflio 
evidence, as the courts of law; that your Lordfhip wil 
of opinion, that you cannot, without overturning the law in 
ly, allow thefe depofitions to be read ; and that nothing bu 
act of parliament can alter the prefent form 6f fwearing. 
Sir ZW/9 Rid*. Mr. Attorney General for the plaintiff, by way of anfw< 
the objection, itated a few particular facts. , 

\ft % That the mattrrs now in qucflion, arc matters of c 
merce arifing in a foreign country, in a^fo^ign jurifdif 
between a Chriftian and an infidel. 

2///y, That in this country the Gentoo religion prcva 
and that Calcutta was only a factory within this country. 



alien. 



37 






jdlj, That the witnefles do believe in a Deity. Omycnv»» 

4/A/7, Not only that they believe in a Deity, but that in fwear* *' Ba»k**- 
log they ufe an expreflion equivalent to ours. So help me God. 

$thlj % That folemn oaths to atteft fa&s* is ufual amongft 
them. 

6tbfy 9 That they underftand an oath in the fame manner 
we do. ' 

7/A/7, That by the letters patent eftablifhing a court at 
Calcutta, there is all the reafon in the world to admit their evi- 
dence. 

%thlj y In point of fa£t f Genioos are admitted as witnefles in 
the court of Calcutta. 

gtbljt That the manner made ufe of in the prefent caufc, is 
the mod folemn and cuftomary. 

totblyy That thefe witnefles are all of the Gentoo religion. 

He then fubmittcd it, Whether a perfon of ftich a religion, 
lid an infidel, may be admitted as a witnefs. He then made 
two proportions. 

ij f That the witnefs is capable of taking an oath as an in- 
fdel, according to the opinion we have of oaths. 

idij. That (here is nothing in our law that prevents him 
from being a witnefs. 

An Infidel properly defined is a Deift, that does not believe 
the Chriftian religion. 

All that in point of nature and reafon is neccfTary to qualify 
a perfon for fwearing, is the belief of a God, and an impreca- 
tion of the Divine Being upon him if he f wears falfely. 

This is the fenfe of all the civilized nations in the world, the 
foundation of all treaties ; nullum enim vinculum ad tidjlri agendum r 2 8 7 
fidem jurijurando majores artlius ejje voluerint* Lib. tert. M. T. C. 
de OrEc. fee. 31. 

The beft writers on Chriftian morality have gone fo far as to 
admit die oath to falfe gods. It Is the fenfe of Grotius ; fed et 
tqms per falfos decs juraverit, obligabitur \ quia quanquam fub 
falfa not is, generali tamen complex tone, numen intuetur : Ideoque 
Deus verur, Ji pejerctum Jit, in fuam injur iam id fatlum interpret 
tour* Lib. 2. c. 13. f. 12. 

Nothing is proper to the oath here, but fo help me God\ 
when it comes to the corporal part, I own it is fupra 
fcmBum evangilium, which is a mere ceremony and not cf- 
fcntial. 

I tan go to a higher authority, the authority of the Jnvifb 
religion, and of the old patriarchs; and it will appear they 
conftantly confidcrcd the heathens capable of an oath. The 
inftance of Ifaac and Abimelech fwearing to one another, 
Gcnc/is 26m v. 31. and in the 31ft of GeneftSy v. $3. Jacob 
fwears by the fear of his father Ifaac y and accepted of La bant 
Oath without hefitation, though he fwore by faife gods. 

Confider now the circumftances and fituation of the Gctttoos 
with refpedt to the oath they have taken. 

\fiy As to the form of the oath. 

And then as to the corporal parts. 

a A* 



Omycrwhp At to the form of the words : it is the fame we make tife ol 

*. A****. k crc . £ or ^ interrogator j) ^ ^/fa* / « the Supreme Being* 

&c. is read over and interpreted to him, and he takes it in th< 

fame fenfe other people do ; which will put an end to thi 

whole objection. 

As to the corporal part: where is the objeflion to it, a 
lead it (hews great humility, and is in all refpe&s applicable t 
the killing of the book, and equally fignificant, for both are n 
more than figns, and not material to the oath. 

The Gentlemen, by their manner of arguing would make on 
believe, there is only one form of an oath. 

Grotius in the fame chapter and book as before mentions 
and 10th fed. fays, Forma jurisjurandi verbis differt, re conv 
mt\ bunc enim fenfum habere debet, ut Deus invocetur, put a h 
tnodo, Deus tejiitjit, aut Deus Jit vindex, qu* duo in idem recidun 
Fid. Voet, upon the Dig. lib. 12. tit. I.fec. a. 
A greater authority, our Saviour, fays, in St. Matthew 
gofpel, Who f wears by the temple, /wears by the God who ii 
habits it. 

So that all terminates in a folemn appeal to the Deity, t 
the truth of what he fays* 

There arc feveral paflages in Livy % Polybius, and Groth 
which (hew that oaths are totally arbitrary. 

The confequencc muft be, that an infidel is capable 
an oath. 

idly, Whether there is any thing in the law of England th 
impugns it ? 

It is laid down by Lord Coke ¥ that an infidel cannot be a w 
nefs, and faid that his pofition is proved by all the cafes cit< 
out of the old authorities. 
[ 29 ] It may indeed be laid down as a general rule, but thereto 
does It follow, that there (hall be no exception ? Does not 01 
law fay, exceptio probat regulam f 

It is extremely proper there (hould be fome general rules 
relation to evidence; but if exceptions were not allowed 
them, it would be better to demoli(h all the general rules. 

There is no general rule without exception that we know 
but this, that the bed evidence (hall be admitted, which the c 
ture of the cafe will afford. 

I will (hew that rules as general as this are broke in up 
for the fake of allowing evidence. 

There is no rule that feems more binding than that a m 
(hall not be admitted an evidence in his own cafe, and yet t 
ftatute of Hue and Cry is an exception. 

A man's books are allowed to be evidence, or, which is 
fubftance the fame, his fervant's books, becaufe the nature 
the cafe requires it, as in the cafe of a brewer's fervants (1). 
Another general rule, that a wife cannot be a witnefs agaii 
her hufband, has been broke in upon in cafes of treafon. 

(i)SttGfymv. Bank t/ England, tTf/: 43. Ufehwre v. JPtnfar, ibid. 54. Pern 
v. Mont, ibid. 193. 

Anotl 



aifeav *9 

Another exception to the general rule, that a man may be exa- Omycrv** 
mined without oath : the laft words of a dying man arc given T- Ba *"*« 
a evidence in the cafe of murder ; a child may be examined 
without oath ; Lord Chief Juftice Halts Pleas of the Crown, 
I vol* p. 634 ; but, if capable of confidering the obligation of an 
oath, may be fwom. 

This fufEciently (hews how much our law allows exceptions 
againft oaths. 

Lord Chief Juftice Lee interrupted the Attorney General, 
tnd faid, it was determined at the Old Bailey upon mature con- 
(■deration, that a child fliould not be admitted as an evidence 
without oath. 

Lord Chief Baron Parker likewife faid, it was fo ruled at 
H*gjlm affiles before Lord Raymond, where upon an indi&ment 
6r a rape he refufed the evidence of a child without oath. 

Mr. Attorney General then proceeded in his argument, and 
iaUed that admitting a Jew to be fworn is an exception from 
the general rule : what is the definition of an infidel ? Why, 
one who does not believe in the Chriftian religion. Then a 
Jew nan infidel, for die fenfe of evangelium has been pervert- 
ed, and ought to be confined to the New Teftament only \ for 
it is ufed by our Saviour as good tidings, in oppofition to the 
bondage the Jews then underwent, and was delivered to them 
firft. 

We are taught there are but four Evangehfts, and the prophets 
are no{ fo, and yet the Gentlemen of the other fide would in- 
troduce many more. As to the paflages in Deuteronomy, it 
happens unfortunately that the books of Mofcs are no part of 
oar religion, nor does the law efteem them fuch. 

Are all the Jewijh difpenfations confirmed by our law ? No* 
This was as much a municipal law to the Jews, as the munici- 
pal laws here to England, or the laws of Solon to Athens, or of 
Lymrgus to Lacedamon, and therefore quite foreign, and nothing [ 30 1 
id do with the prefent queftion. 

He mentioned then what had happened before a committee of 
privy council the 9th of December 1738, on a complaint againft 
General Sabine. A Tuti was brought there and offered as a 
witneis, and to be fworn upon the alcoran, and was fworn ac- 
cordingly. 

So far this agrees exactly with the prefent cafe ; but it may be 
£ud 9 this was not in a court of juftice, but rather a matter of 
ftate. In that refpe& there is fome difference, but it will not 
take away the ufefulnefs of the precedent, to (hew that a court 
or perfons may alter the form of an oath. 

This Indian witnefs has fworn by the very fame words that 
ve do, therefore your Lordfhip will not prefume that he means 
any other God than we do. 

It is of the greateft moment, that we {hould have commerce 
and correfpondence with all mankind ; trade requires it, policy 
acquires it, and in dealings of this kind it is of infinite con- 
ference, there (hould not be a failure of juftice. It has been 
that we might have other evidence. 

But 



30 9Ifftt» 

Omtcivh» But though we may have (lighter evidence, why mould vc 
y.BAasxt. j^ t j cc j ^^^n t0 this, and debarred of the pre fen t, which it ; 
much ftronger ? Gentoos are the common brokers in this coon* 
try, and the nccefiity of the cafe will work ftrongly for us. 

There was a time when even Jews were not fworn, and no 
longer Gnce than the 5th of November 1732, there was a com* 
million out of the Exchequer in the caufe of Lopes and Nurn^ 
in which there was a diftindion between the oath for Jewsiwix 
Chriftians ; for if Jews 9 they were directed to be fworn fupn 
Vetus Te/iamentum only. 

An objection was likewife made, that this Indian would not be 
liable to be puniihed for perjury j to which it is anfwered, Tint 
if the court fhould be of opinion this is an oath which may be 
taken, of confluence he is liable to be puniihed, if forfworn. j 
Another objeflion is, that Quakers could not be admitted at - 
witnefies till an exprefs aft of parliament to empower them. [ 
The plain anfwer is, that they would not take the oath at all, " 
therefore their folemn affirmation was not fufficient, becaufe it 
had not the eflence of an oath. 

Upon the whole, as it is a cafe of nccefiity, and we have fully ^ 
in proof from the return of the commiflioners, that they believe : 
in the Supreme Being, thefe witnefies ought to be admitted. 

November the 10th 1744. 

•Mr.Afrmy. • Mr. Solicitor General, of the fame fide with the Attorney 
General. 

It is exprefsly certified by the commiflioners, that the oath 
prescribed to be taken by our law was read over to the plaintiff's 
witnefies. 

The obje&ion is, That they have not made the ufe of the cor* 
pond ceremony, the killing of the Evangelifts. 
[ 31 ] But they have made ufe of another fymbol, the taking the 

prieil's foot with their right hand, becaufe this is the form and 
ceremony molt binding in their own religion, and notwith- 
ftanding this, an obje&ion has been taken to the reading of their 
evidence. 

Firfi, Becaufe they have not touched the Evangelifts and are 
Pagans, and therefore cannot be admitted. 

Secondly, Suppofing they may be admitted as witnefies, yet 
under the land ion of the oath thus certified, they ought not to 
be admitted as witnefies. 

In raoft of the rcafons the Gentlemen have begged the quef- 
tion, and have infifted that the admitting their evidence is con- 
trary to law, and they cannot be indi&ed for perjury. 

But if the admifiion is not contrary to law, then of courfe 
the witnefies are liable to be indi&ed for perjury as well as a 
Jew, who may be indi&ed taBo libro legis Mofaha* 

The ftatufic of the 5 th of Elizabeth leaves this matter intirely 
•pen. 

Tii 



atfen. 3i 

id there is no-one precedent or cafe of a heathen fworn Omtcmvuo 
to the ceremonies of his own religion, ever exifted be- T ' ***«*• 
ngland in courts of ju ft ice, proceeding according to the 
law. 

. have been fworn in the court of admiralty, as Dr. 
nd Dr. Andrews have informed me ; but they had no 
le cafe, and had forgot the name of it. 
>nder that it has not exifted before, becaufe all our 
i is carried on by our going to them, inftead of their 
ere. 

fe of a Jew as a witnefs in a private caufe never exifted 
the reftoration ; they went out of England the 18th of 
he i ft, and did not return 'till Oliver Cromwell's time, 
ily authority of confequence cited, is a faying of Lord 
Zo* Lit. 6. b. That an infidel cannot be a witnefs. 
ying is not warranted by any authority, nor fupportcd 
eafon, and laftly contradicted by common experience. 
» meantjrc</s, as emphatically Infidels by (hutting their 
lft the light. He hardly ever mentions them without 
ation of Infidel Jews, 2 Inft. 506, 507; and thus this 
{meaning Edward the Fir/1) banijhed for ever thefe in* 
ius Jews : therefore Lord Chief Juftice Hale was not 
when he underftood Lord Chief Juftice Coke meant 
Infidels as well as others, 

II the law books when they mention an oath mean a 
oath, is no argument at all ; Flefa's definition, magis 
'are per Creatorem quam creaturam : this fhews the oath 
ixed, but like the oath fworn in the Roman empire after 
lifhment of Chriftianity ; and Lord Coke's faying an 
1 affirmation or denial by a Chriftian, is no wonder at 
le laws of England could fpeak only of the Chriftian 
aufe they bad no intercourse with Pagans, 
guments of the other fide therefore prove nothing ; for 
How from hence that no witneftes can be exatnined in 
t never fpecifically exifted before, or that an aftion 
brought in a cafe that never happened before ? 
, ftated to be the firft ground of all laws, by the author [ 32 ) 
>ok called Dotlor and Student, and general principles 
rmine the cafe 5 therefore the only queftion is, whether 
ciples of reafon, juftice and convenience, this witnefs 
DC admitted. Upon this occafion I (hall lay down two 
ns. 

fhat by the practice of England, and of all the nations 
arid that are Chriftians, perfons, though not of th€ 
perfuafion, may be admitted as witnefles, and fworn 
to their own form. 

i f That the cafe of a Pagan is within this reafohing, 
rity. 

£ law depend upon occafions which give rife to them. 
the commerce and intercourfe is molt frequently 
Pagans, the inftances to be fure will molt frequently 



After 



\ 



it SHett. 

Omtcrvnd After the Roman emperors were converts, Chriftians, as we 
v. AiKit. ^ thofc who continued Pagans, fwore according to their fane; 
without any particular form. Seldon, torn. 2.f. 1467. " Mittimt 
u tic, principibus Chriftianis, ut ex hijloriis fatis obvius liquet % fclenm 
u fuijfe et peculiar ia jur amen td) ut per vultum fanSti Luc*) per p 
u Jem Chrifti, perfantlum hunc vel ilium, ejufmodi alia nimis crebra 
u Inolevit vero tandem, ut quemadmodum Pagani facris ac myjleri 
" aliquofuis aut taclis aut prafentibus jurari fblebant, ita folenioi 
€t Cbriftianorum juramenta jierent, aut taclis facrofantlis evangelit 
€t aut infpcB'u, aut in eorum prafentia manu ad peclus amota, fu* 
€< lata aut protenfa ; atque is corporaliter feu perfonaliter juramet 
€t turn praftari diclum eft, ut ab juramentis per epiftolam, aut \ 
u fcriptis folummodo prijlitis dijlingueretur 9 hide in vulgi pajji 
" ore" Upon my corporal oath. 

So that by this paffage out of Selden it appears, the corpor 
part which prevails now all over Chriftendom, was taken froi 
the Pagans, and by degrees under the Greek Roman emperors, 
came to be eftablifhed, that this ceremony fhould be ufed. 

The opinion of the Greek Roman emperors, as to the oaths < 
perfons of other perfuafions, \$ mentioned by Selden, torn. '. 
/>. 1468. to be as follows : u Alien a autem perfttaftonis homines pi 
tc id quod venerantur illi, et juxta modum quo venerantur % adjura 
" confucverunt? And in p. 1 469. Selden gives a long account < 
a particular ceremony in fwearing a Jew in courts of juflice 
and before the 18th of Edward the Firll, the perfon adminiftrin 
an oath to a Jew, faid, If you don't fpeak the truth, veniantft 
per caput tuum omnia pec cat a iua, 13 parentum tuorum, et emu 
maleditliones qua in lege Mofaicd et prepketarum inferipte funt fen 
per tecum maneant" To which he anfwered, Amen, 

In Spain the Turks poflefled the grcateft part of the kingdoi 
till the time of Ferdinand the Catholic 5 what did they then d< 
when Chriftians and Turks had controverfy together ? Why, a< 
cording to Selden torn. 2. 1470. the form of the oath wis in Spanl 
to fwear as he hoped to be faved by the contents of the alcorai 
and fays he, <c Poena autem Mauro perjuro injlicla eft, non mini 
quam Chrifliano, licet pro locorum et feculorum difcrimine difpar" 
t 33 ] Thus it ftands upon the authorities of Chriftian countrie 

where fuch queftions have arifen ; but, as I faid before, tl 
queftion did not arife here till after the reftoration. Was 
then determined that a perfon not a Chriftian fliould not 1 
fworn? No! the firft time it exifted, the court determine 
that he fhould be fworn according to his own principles. 

No cafe of a Turk fworn upon the alcoran in England b 
that before the council, who were of opinion, greatly afliito 
and greatly attended, that he might be fworn upon the alcoran 

Here is a material circumftance in this cafe, a court erech 
in Calcutta, by the authority of the crown of England, where 1 
diart; are fworn according to the moil folemn part of their ov 
religion. 

All occafions do not arife at once ; now a particular fpeci 

of Indians appears ; hereafter another fpecies of Indians may arif 

a ftatute very feldom can take in all cafes, therefore the cor 

3 mi 



aifeti. 33 

monlaw, that worts itfelf pure by rules drawn from the fountain 2!*a** V ° 

of jultice, is for this reafon fuperior to an a£t of parliament. 

The oldeft books of all countries mention the folemnity of an 
oath, as a fecurity for a perfon's fpeaking the truth ; they can 
do no more than lay him under the moft facred and binding 
obligations; they all call it appealing to God for the truth, 
and deprecating his vengeance as they fpeak truth. 

There is not a book upon the general law of nature and na- 
tions, but admits that Chriftians may allow perfons to fwear ^ter 
Dsminum et per falfos does. It is fo laid down in the Decre- 
tals, in Gratius % and Pufendorf who in his 4th book, 4th (eft. 
and I22d page, faith, " That part of the form in oaths under 
14 which God is invoked as a witnefs, or as an avenger, is to be 
i% accommodated to the religious perfuafion which the fwearer 
41 entertains of God; it being vain and.infignificant to compel 
"a man to fwear by a God whom he doth not believe, and 
"therefore doth not reverence; and no one thinks himfelt 
44 bound to the Divine Majefty in any other words, or under 
44 any other titles, than what are agreeable to the dodlrines of 
"his own religion, which in his judgment is the only true way 
"ofworihip: and hence likewifc it is, that he who f wears by 
"falfegods, yet fuch as were by him accounted true, (lands 
11 obliged, and if he deceives, is really guilty of perjury, be- 
w aufe, whatever his peculiar notions are, he certainly had 
11 feme fenfe of the Deity before his eyes, and therefore, by wil- 
44 fully forfwearing himfelf, he violated, as far as he was able, 
44 that awe and reverence he owed to Almighty God ; yet when 
44 a perfon, requiring an oath from another, accepts it under a 
44 form agreeable to that worfhip which the fwearer holds true, 
w and he himfelf holds for falfe, he cannot in the lead be faid 
44 hereby to approve of that worfhip.'- 

The oath muft be always underftood according to the belief 
of the perfon who takes it; not only Chriftian writers now, but 
before Chriftianity, the world was divided into a vafl: variety of 
opinions, and yet every man was admitted to fpeak according 
to his own belief, (i Dig. lib. 12. /. 2. f. 5. Omni enim omnino 
44 licitum jusjurandum, per quod quis fibi jurari, idoncum eft y et f ex r 34. "1 
44 eo fuerit juratum^ praiori id tuebitur : divus pins jurejurando, 
" quod propria fuperftitione jurat urn, efl y (landum rcfcripftt y datoju- 
44 rejurandoy non aliui quaritur 9 quam an juration fit : remijja 
u qu£Jtione y an debeatur> quaft fat is probatum fit jurcjurando* 
Lord Stairs's Inftitute 694. 

I do not find any authority has been produced from any other 
country, that fuch oath ought riot to be admitted : the reafon 
why Ld. Ch. Juf. Eyre would not futfcr the Indian a worfhipper of 
Ac fun to be fworn upon the Evangelifts was, becanfe he did not 
believe in Chriftianity ; but if he cannot be fworn at all, ma- 
aifeft injuftice, and manifeft inconvenience mud follow. 

Heathens bought the goods, heathens fent them, heathens 
hew the price, heathens kept the account. Would it do honour 
4m to the Chriftian religion, to fay, that you cannot fwear ac«* 
to our oath, and therefore you (hall not be fworn at all f 
Da What 




34 annt 

o^vcHiriio What mutt the heathen courts think bf our proceedings? Will 
h T.BA»*«*. i tnot deftroy all faith and •onfidence between the contrafting 
parties ? Is the cafe of the Turk or Jew fwearing according to 
their religion, different from the Indians fwearing according to 
his? The obje&ioh is ftronger againft the Turk becaufe he 
fwears upon the alcoran, which we think an impofturej but 
the Indians here fwcar by one fupreme God, without appealing 
to any particular book or authority in their religion. 

It is faid a heathen is not to be believed. 

Is it not known that all the heathens believe in a God ? I 
will refer them to Tally in his Tufculan Difputations, lib. I. 
f. 13. " Porro Jitmifflmum hoc affcrri videtur $ cur Deos ejfe credo- 
'** nuiS) quod nulla gens tarn j "era , nemo omnium tarn ftt immanis 9 cu* 
u juj mentem non imbuerit Deorum opinio. No country can fubfift 
a twelvemonth where nn oath is not thought binding, for the 
want of it muft neceffarily diflblve fociety. 

«<//y, It is obje&ed, that fuppofing they may be admitted as 
witncflcs, yet under the fan&ion of the oath thus certified, they 
ought not to be admitted, for that the form is ridiculous, and 
their notions of religion not certified by the commiffioners. 

But the oath they have taken (hews it ; for the commiffioners 
have certified that they have faorn by one God, and alfo 
proves that they think themfelves under the tyc of an oath. 

Look into books of travels, and you will find that heathens, 
efpecially Gentoos % believe in one God the Creator of the 
world, thougli they may have fubordinate deities, as the papiftt 
who worfhip faints. Relig. Ctnm* vol. 3.380, 381, 398. 

No doubt but they all have a notion of a God, according to* 
Tully : but to ufe a greater authority than Tully : " They arc a 
" law unto themfelves, which Ihcw the work of the law written 
'• in their hearts, their conferences alfo bearing witnefs, and their 
%i thoughts the mean while accufing. or elle excufing one ano- 
" ther." St. PauFi epiflle to the Romans \ 2 ch. 14th & 15th ver/es. 

The corporal ceremony is a mere matter of form, and not of 
the eflence of an oath : Du Frefnes Gloflary fays, that monks 
t 35 3 fwore by kifiing the feet of the abbot, nay the abbots fwore by 
their word only, from whence the exprelfion /// verbum facer* 
dotis i and I cite this to fliew, that as it has varied fo much, it is 
all form. 

Lord Ch. Juft. Lee defircd he would anfwer the obje&ion as 
to the form of indidments of perjury upon the holy Evangeliftg 
which are neceflary words. 

Mr. Solicitor General. There is no inftance of a Jew's being 
iiidi&ed for perjury. 

Lord Ch. Juft. Lee. I have tried a Jew myfelf upon an in- 
dictment of perjury. 

Mr. Solicitor General infiftcd, That the indidment would 
not be wrong againit a Jew if it was taclo libro legis Mofak*. 
Ho precedents but what are of indi&ments againit Chriltian* 
for perjury before the reftoration \ and fince that time it is 111^ 
cumbent on the other fide to (hew, that it has been held to be 

aw 



Sftett. 3$ 



01, when the indi&ment againfl a Jew fays, that he was fwora on Omtchuk* 
thePentateuch. J '**""• 



Mr. Clarke of the fame fide* 

^^ / 

That religion ex vi termini means the belief of the exiftence 
of the Deity. 

To fhew further the neceflity of admitting this evidence even 
with regard to intercourfes between Chriftian countries them- 
fehes, vid. Voefs Commentary on the Pandecl. 60 2. Sine evangelli 
taBu f &c. If this oath cannot be adminiftred, becaufe not upon 
the Evangel ids, the fame objection will hold as to a Dutchman, 
who does not fwcar as we do on the New Teftament. 

As to the opinions of the commentators on the civil law, vide 
Jaeumt. 4 fee. c. 4. f. 2. Mynftngerus. 6 Cent. Obf 20. p. 301. 

There was a time when fwearing on the holy Evangelifts was 
not the pra&ice here -, for when St. Aujlin introduced the Chris- 
tian religion, the inhabitants were tenacious of their own cuf- 
toms, and therefore he indulged them. 
There were not above twelve Jews in the kingdom before the 
! reft oration. And they deputed one 'of the principal perfons 
amongft them, in Oliver CromwelPs time, to come over hither, 
in order to find out, Whether Oliver was the Median or not ? 

In Maddox's Hiftory of the Exchequer, in his chapter relating 
toiht Jews, p. 166, 167, & 174; there are the following paf- 
fages : " Benediftus f rater Aaronis Judai Lincolnia debet xx mar- 
t** cas t pro habenda jurat tone fecundum confuetudinem Judttorum, ad 
*• amvincendumfi Urfillus Judxus Lincolnia fit falfonariur, tali 17- 
<€ del'zcet juratione quali alii Judtti falfonarii convincifulebant" Mag. 
Rot. 5. Joh. Rot. 9. a. Line. 

u Judai Anglia debent centum libras, ut Judai retentcres y fa- 
u trsnej, et eorum receptatores y per inqniftiionem fact am per ftcra- 
" mentum legalium Chriftianorum vel Judaorum, vel alio modo de 
11 frtdicla malicia cotrjicliy a regno ejiciantur irredituri \ ftcut con- 
<c tinetur in originali" Mag. Rot. 22 H. 3. Londonia & Midd. 

Si Judaus ab aliquo appellatus fucrit fine tejle> de illo appellant erit £ 36 J 
quietus folo facr amenta fuofuper librumfuum ; et de appellatu illarum 
reruns qua ad aronam nqfiram pertinent, fmiliter quietus eritfolofa- 
cramento fuo fuper rotulum fuum. . Rot. Cart. 2 Joh. N. 49. 
Titulo Carta Judseorum Angliae. 

Ld. Coke in the 7th Rep, Calvin f s cafe 17, faith, " All infi- 
u ndels are in law per pet ui inimici \ for between them, as with the 
u devils, whofe fubje&s they be, and the Chriftian, there is per- 
u petual hoftility, Wr." But he meant perpetual enemies in a 
fpiritual fenfe, and quotes a paflage in fcripture to that purpofc. 
What concord hath Chrifl with Bflial f Or what part hath he that 
Uievetb with an infidel? 2 Cor. vi. 15. 

' A*to the obje&ion that Ld. Coke fays, no oath can be altered 

Jfctby ad of parliament, it relates to fome particular officers of 

•the frown* And as to the civil confequences of puniflmient for 

• Ittjptjf Ld. Coke, in his third Inft. 164, on perjury, fays, thai 

f 'with Tdfped to a perfon being charged with a breach of oath* 

i jfce m*ft|Q|| is, "Whether it was lawfully adminiitred I 

D 3 Then 



3* 



aifett. 



Omtchvhb Then if the oath adminifired here is agreeable td the genius 
aik&k. q £ t j^ e j^ ws o j. £„gi an j^ w jjj t h ev not be liable to punifhment 

for a breach of it •, for I would fubmit it, Whether the crime 
may not be dated fpecially, and recite the ceremony of the wit- 
ness's taking the oath, provided it cannot belaid in. the ufual 
common form ? 

Mr. Chute 9 * reply, who was the leading counfel for the de- 
fendant Barker. — Nov. 12, 1744. 

As to the.reafons urged from neceflity, and inforced from 
what the law does in fimiliar cafes, it is not put in iflue, nor 
proved that there is a neceflity for having thefe witneifes. It is 
not faid by the counfel for the plaintiff, that there is no other 
way of carrying on bufinefs in the Raft Indies y without thofe 
peribns, nor is it even pretended in the bill itfelf \ if there is 
no fuch neceflity, the argument from thence can have no 
weight in this cafe ; and I hope this is an anfwer to what has 
been called neceflity and a failure of juflice, if thefe witneffts 
fhould not be admitted. 

The adt of a Geo. 2. e. 21. in the cafe of murder, where the 
ftroke was at fca, and death at land, or vice verja, is to take 
effect only infuturo \ fo that if a murder of this fort had been 
committed by a peribn before, here was certainly a failure of 
juflice ; and yet the legiflature would not by a law, ex pojl fa8t % 
include fuch perfon in this act. 

I fay this with regard only to the particularity of the perfons 
concerned as witnefles. As to the principal queftion, it is en- 
deavoured to be fupportcd by the other fide, by principles of rea- 
fon, by au-hority of fcripture, and by rules of the civil law. 

The cafe* frum fciipture are not fimilar, and arguments apart. 

To f.iy it is natural to have a religion, and to believe a God, 
I think fo in fome nieafure ; but yet it is otherwife in experi- 
ence, Pfr.lm i 15. ver. 4th and 8th. " Their idols areJUver and 
t V) 1 " ^^* evcn '^' ' iV '' r * s c j v:ens hands \ they that make them are like 
" uhfo ih*m y undfo are all fuch as put their trujt in them" 

As to the oath of Abraham and Abimelech, thtre was not then 
any let form cxiiling, ncr was it an oath to bt taken in a court 
of judicature. Latah's oc.th to Jacob was of the fame kind, and 
jfa-o't accepted it, as thinking it better than r.o oath at all. 

1 his therefore is far from convincing th.it every religion doe9 
rcil in the belief of a God and all his attributes, for it would be 
proving too much, viz. that there never was a falfe religion in 
the world. 

Next as to the fort of religion now before the court, nothing 
is more certain than that the witnefles are Ge?itocs % and though 
the commiflioners need not have certified all the tenor of thvir 
religion, yet they fhould have certified it, fo far as their religion 
was concerned in taking an oath \ and as to their notions of a 
Deity' ', * cing a rcwarder of good, and an avenger of e\il, vid. 
Majlis's Ifj/f. J;td*S y lib. i.fj. 36. 

As to the authorities from the civil law, Grctius % Puffcniorf % 
bfc. they are not authorities to conclude upon the common law, 

for 



aifen. 37 

for the civil law is not received as the rule of property here, Omychund 
much lefs as to the rule with regard to our criminal law. The * BA1K,t * 
civilians hold different rules of property from us, and differ in 
nothing more than in admitting evidence, for they rejeft hiJlriones % 
Me. and whole tribes of people. Much the greateft part of the 
civil law is only opinions and fayings of great men, but the fay* 
ings of the judges in our law are of much greater weight, becaufe 
they are fayings when the caufe was judicially before them. 

The Lord Chief Juftice Hale fays, Oaths of Heathen§ have 
been admitted in the municipal laws of other kingdoms. How far 
foever this great man may differ from Lord Cote, he rather fpeaks 
of fpecial laws for allowing heathens to fwear according to their 
own form ; but thefe fpecial laws have not yet been made here, 
and the paffage of Lord Hale is no more than a wi(h, and not 
an opinion. ' 

It is material that nothing is certified in this cafe as to the 
witneffes' opinion of our oath, or that the witneffes did repeat 
the oath, or ufed any words at all ; but it feems that they imme- 
diately had rccourfe to their own ceremony. It is faid here were 
the words Jo help me Gsd, but thefe witneffes do not appear to 
have faid any thing, and yet care is taken that the Quakers 
ihoold repeat. 

Where would have been the harm if they had fignified their 
aflent to our oath ? It would certainly have been more fatisfac- 
tory. It defcs not appear that the Gentoos believe a God of the 
oniverfe, and Lord Hale thinks it neceffary they fhould believe 
Deum Creatorem. 

The moft material queftion is, whether thefe witneffes are ad* 
suitable by the laws of England ? 

I muft own that the authorities are few, but I hope there is no - 
exception to be (hewn of the other fide, and where it is a general 
rule, it comes rather of the other fide to fhew it has been varied. 
No one of the inftances Mr. Attorney General put of excep- 
tions to the general rules, but where the witneffes were primd 
fade admittable. The ftatute of Hue and Cry was made, that [ 38 J 
perfons might pafs and repafs fafely in the kingdom. Robberies 
are committed oftener upon fingle perfons than more, and there 
is in moft inftances no other method of proving the rohbery but 
by admitting the evidence of the perfon robbed ; therefore judges 
were inclined to let in this evidence upon neceflity. It is not 
certain what the rule would be, in the opinion of judges, if a 
third perfon was by. 

Lord Chancellor: This evidence might be allowed notwithJlanding 9 
fir a third perfon or fervant might be at a dijlance 9 and not know the 
foci of the robbery fo well as the perfon robbed. 

Mr. Chute : The next injlance is 9 as to letting in a tradefman'j 
looks kept by his fervant ; but there the oath of a living perfon is 
toatteft them.— The next, of a wife in cafes of treafon, but here 
is no authority cited, but it is faid to be an opinion of Lord 
Chief Juftice Hale. — The next inftance brought is, That the 
fijings of dying men may be given in evidence. This is no more 
than giving evidence of a nuncupative will, and not fo much 

D 4 words 



3* aifen. 

OMveavN» words as evidence of circumftanccs. A man, as he is juft lea* 
v. Baikik. j n g t h e ypojid, ma y be fuppofed to have a greater regard to truth ; 
< but on a trial for murder this kind of evidence will not alter the 

fenfc of the court, if it (houid appear the deceafed was killed 
fairly ; in Major Qncby% cafe it was mentioned by. the fpecial 
verdict, that the dying man faid he was killed after the manner 
of fwordfmen ; but this had not weight enough to over-rule 
ftronger evidence* 

It is faid that in matters of cujlotn and tradition, hear-fay evi- 
dence is admitted ', and rightly fo, for how can tradition be con- 
veyed but from man to man through a fuit of ages ? 

The cafe of a rape of a child, and her evidence being admitted with* 
out oath, was denied by Lord Chief Juft ice Lee, and Lord Chief 
Baron Parker, to be law, and therefore I (hall not trouble you 
on that head. 

A great deal of ftrefs has been laid on Lord Coke's putting 
Jews on a foot with Infidels ; in other places Lord Cole calls him 
an Infidel Jew, therefore defcribes bimfecundum quid, and not 
generally as an Infidel. 

As to the authority from Maddox's Hiftory of the Exchequer, 

he determines generally that they ihould be fworn and by their 

, own book, but it is not by force of a charter that they are fworn. 

After the restoration, when the Jenvs came over in great num- 
bers, they were admitted to be fworn ; and this was doing no 
more than declaring what was the ancient law. 

The Jews were once the people of God ; great and atrocious 
crimes were forgiven them 5 they had certainly the promife of 
Scripture largely given them, and the evangelium is equally ap- 
plicable to the Jews as to die Chriftians— for the good tidings are 
not confined to the New Teftament, the fame being told fo 
early as juft aftetxhc fall ; Gene/is the 3d and 15 th. And I will 
put enmity between thee and the woman, and between thy feed and her 
Jeed ; it Jhall bruife thy head, and thoujhalt bruife his heel. 
T 39 3 As to the form of indictments, they ought to be adhered to ; 

if there was nothing but confidence to awe a perfon in taking an 
oath, I am afraid, from the depravity of mankind, it would not 
be fo binding, for it is the apprehenfion of temporal punifhment 
which in a great meafure prevails upon perfons to fpeak the 
truth. 

There is no authority to fhew that indictments have run other* 
wife than on the holy Evangelifts, and faid in Hall's cafe, that the 
Chriftian religion is part of the law of England. 

If there is a poflibility that the Jews may be reconciled to the 
New Teftament, it ought to have weight; and an ingenious 
author, the Charterhoufe Burnet, imagines they will ; and as 
they believe a part of the Holy Scriptures, it mult give them a 
fuperior credit to perfons who do not believe at all in the fame 
manner with us* 

Siippofe a Chriftian mould turn apoftate to the Gentoo religion, 

and mould fay, I am not liable to be indicted ? How muft he be 

convicted of perjury, any more than a perfon who is a Gentoo 

from his birth ? This might be attended with bad confequences, 

/ becauft 



alien. 39 

becaufe perfons of this temper of mind, who are guarded againft 0*tchwn» 
corporal punifhments, will trull futurity as to eternal punilh* T * Ba****.. 
ments. * 

As to the obje&ion of our bringing a crofs bill, and that we 
hare thereby admitted the defendants capable of putting in an 
anfwer, it will of courfe fall to the ground, as we do not make 
any ufe either of our crofs bill or their anfwers. 

As to the admitting the Mahometan as a witnefs before the 
committee of the council, it was done without debate upon it $ 
for&ii/Ws counfel, who hnd a right to make the objc&ion, were 
farisfied of the truth and. juftice of Sabine's caufe, and therefore 
itpaffed without oppofition ; but as the judges fit there rather as 
advifers than in any other light, it wants the form of an authority. 
. Mr. Solicitor General mentioned a cafe which he had from 
Dr. Sir a ha rt and Dr. Andrews, where a Heathen was admitted 
as a witnefs, but the name is not fo much as known. Dr. 
AwMtj and Dr. Simpfon have informed me, there was a cafe be- * 

fore the commons in a fuit for a divorce, where a black was ie- 
jefled as a witnefs, becaufe not of the Chriftian religion. 

As to the charter, nothing is faid there, but that -\ folejnn oath 
ftaU be given. A charter may be granted which may aft'ccl: a 
place out of the* kingdom totally, and yet may not infringe the 
general rule here with regard to fwearing. 

Like the common cafe of a Pie-powder court, which is a fum- 
maryway of doing juftice during the fair, and is reftrained to- 
that particular time, but you cannot follow it afterwards. 

That an a£fc of parliament is neccfTary to difpenfe with the 
form of an oath, appears from the I oth of the late king in rela- 
tion to the Jews, this adl being made to difpenfe with their 
fwearing upon the faith of a Chriitian. 

Therefore, if it mould be thought proper for reafons of ftate, 
and for the fake of trade, to receive fuch evidence for the future, 
let it be done by the legiflature, and not admitted againft an in- 
fant, where the plaintiff acquiefced for 4 years, till the perfon 
tranfacting with him was dead. 

Lord Chancellor : My Lord Chief Juftice, Lord Chief Baron, f 40 1 
and myfelf are of opinion, the caufe {hould itand over till next 
term, that it may be properly confidered, this being a point of 
the utmoft confequence ; and in the mean time let a fearch be 
made in the crown office for precedents of indictments of per- 
jury, to fee whether in the indictment of a Jew it has been laid 
teclo libra legis Mofaic* y or whether there is any thing particular 
in the form with regard to the indi&ments of Jews; and as 
Cafes have been mentioned in the admiralty (which is a court 
where fuch cafes are mod likely to happen) of Heathens being 
admitted to fwear in their own form, 1 (hould be glad to have 
inquiry made in that court likewife. 

February the 23d 1744. 

This caufe came op for judgment upon the point above men- 
tioned* 

Lord 



4° aifen. 

Oitreirv** Zori Chief Baron ; The counfel for the defendant, in fupport 
*»Saikx*. f ^jj bje£kion to the plaintiff's evidence, cited I Lift. 16. and 
4 ////?. 279. to (hew, 27><j/ a/* ^/z>« i/*/foW can be no witnefs. 

If my Lord Coke had by an Infidel meant, a profejfed Athei/l, I 
fliould have been of opinion that he could not be a witnefs. 

I fhall (hew that perfons who profefs the Getttoo religion be- 
lieve a God to be the Creator of the world. The generality of 
mankind believe a God. Tully in his Tuft. Difput. lib. 1. /. 13. 
lays, " £>j4od nulla gens tarn f era 9 nemo omnium tarn fit immar.iiy 
u cujus mentem non imbuerit Deorum opinio ;" and cxpreffes him« 
felf to the fame effect in his Treatife de Natura Deorum. 

As to the Gentoo religion, vid. Relig. Cerenu vol. 3. p. 257, 
277, 381. andTovmeforfs Poyages, p. 39, 259. from which it 
will appear from the beft teftimonics, that perfons of this reli- 
gion do believe in God as the creator and governor of the world. 

The defendant's counfel cited 2 Keble 314. to (hew that the 
Old Teftament is the Gofpel as well as the New, on one of 
which the law requires the oath fhould be adminiftered. 

To this I anfwer, that the ritual or ceremonial part of the 
Mfaic law is not binding, but the moral is, upon Chriiiians ; 
therefore I think the Old Teitameut cannot be called the 
Gofpel. 

As my Lord Hales reafon will be the bafis of the advice I 
fliall give your Lordihip, I (hall read die paflage, and endeavour 
to comment upon it. H. P. C. 2 vol. 279. 

It has been faid by the defendant's counfel, that Lord Hale 
mifunderitood Lord Coke\ in anfwer to this, confuler the 3d 
Inft. 165. and you will find Lord Halt's conference is very 
well founded. 

' Lord Hale fays, " i" tahe it that although the regular oath, &c. 
cc is ta&is facroiancHs Dei evangtliis, &c. yet in cafe* of necejpty % 
4< as in foreign contrails y &c. the ieflimony of a Jew, u£to libro 
fi legis Moiaicx, // not to be rejected" 

The books, cited by the defendant's counfel, to (hew jurors 
or witneffes mull be fworn upon the Gofpel, were Brafion, Bri~ 
ton> Fleta 3 l$c. Thefe authors prove no more than that the oaths 
are adapted to the natives of the kingdom : But by Maddox's 
Hiitory of the Exchequer, 166. and Wiikitis's Saxon Laws, 348, 
it appears that Jews were alfo fworn ; and in the latter author 
we find fomcthing very particular ; a venire facias is mentioned 
to have iffued xofex Icgales homines y &fex legates Judaos. 

A doubt arofe after the reftoration in what manner a Jeio 
ftiould be fworn in putting in an anfwer. Upon a motion, Lord 
Keeper North ordered he ftionld be fworn upon the Pentateuch, 
and that the plaintiff's clerk fhould be prefent to fee him fworn. 
Anon. 1 Vern. 263. vide alfo Francias's Trial in the State Trials, 
Tis likewifc the conftant courfe in trials* at bar and tiifi prius % 
and, which is dill flronger, there is an a£l of parliament to in- 
force it. 

This overturns Lord Coke's opinion fo far as Jew arc conccrn- 
cd, and eftablifiies Lord Hales 1 s. 

Tim 



[41 ] 



aitat 41 

The next paflage in Lord Male relates to the fpecial laws in OntcHtrKa 
Spain, Yea the oaths of idolatrous infidels have been admitted in the v * •*****• 
municipal laws of many kingdoms, especially C\ juraverit p:r verum 
Deum (Jreatorem, and fpecial laws are ittjlituted in Spain touching 
the firm of the oaths of infidels. 

Confider now whether there is not fuch a neceflity here as is 
fufficient to render this evidence admiflible. 

An objection is made that the plaintiff ought to have (hewn 
he could not have the evidence of Chriftians. 

To this I anfwer, that repugnant to natural juftice, in the 
Ihtute of Hue and Cry, the robbed is admitted to be a witnefs 
of the robbery, as a moral or pre fumed neceflity is fufficient : 
and that it (hall be taken for granted there was the fame necefli- 
ty in the prefent cafe, as nothing is dated to the contrary. Be- 
Ikles, it appears that the plaintiff did commence a fuit in Cal- 
tufa, and obtained a decree there, and, what ?3 very materia!, 
Barker himfclf, the father of the defendant, in that fuit in the 
mayor's court, infilled that Omychund (hould be afked whether 
Jic was cf the Gentoo religion, and that he (hould be fworn ac- 
cording to his own notion of an oath, which was done according- 
ly. This certainly bound Barker, and of courfe his representa- 
tive. Vide 2 Roll's Rep. 346. 1 Salk. 283. 

In (hort, I do not fee what (hould hinder admitting them as Heathens »&. 
wmieffes. They are admitted by the civil law — by the law of ^^J^tj, 
nations — by the common confent of mankind, (He then cited v nuw,bytke * 
all the cafes mentioned by plaintiff's counfel, and Lord Stairs's law of nationi, 
Inftitute, to fliew what die law of Scotland was in this parti- ^JXSbSrf 
cular.) mankind. 

But it it objected, that thefe witnefles do not fwear by the 
true God, and for this purpofe, the defendant's counfrl cited 
Deuteronomy vi. 13 and 14 verf Thou Jhalt fear the Lord thy God, 
endferve him y and Jhalt fwear bf his name. Ye Jhalt not go after 
tther godjy of the gods of the people which are round about. 

Of the othr-r fide, Jacob) upon his covenant with Laban,fwon 
by the fear of his father Ifaac, Gen. 31. v. 53. 

My anfwer //, This is not true in faft, for they do fwear by 
the true God, the Creator of the world. 

Lord Hale fays, aprovifion by the laws of Spain for Moors, and T 42 T 
oaths particularly adapted to the religion of the Mahometans : but 
here the oaths taken by thefe witneiTes, is the conftant oath, and 
taken in their ov/n manner exactly. 

Lord Hale makes a que (lion, Whether a Turk or m Jew may be A Jew s 1 



admitted to give evidence upon a murder. I will not give a precife tent witn+i to 
opinion, but I think a Jew a very competent witnefs to prove a P tovtamur 
tturder. 

Next as to the form of the oath. 

lam very far from faying that this is fo folemn and fig ni fie ant 
IS ours is. 

The Scnpture has upon this occafion been cited, and I will 
therefore mention tlie opinion of a very great divine, Tillotfon 
in his affize fermon, 1 vol. fo. 194. The form of an oath is vo- 
luntarily taken up and inftituted by men. 

In 



4* alien. 

^Va^Yi** In thc cafc of ^"'^ v - °*» x S/rf - 6. Doctor Owm vice 

chancellor of Oxford being a witnefs for the plaintiff, refufed 

to be fworn in the ufual manner, by laying his right hand upon 

the book, and by killing it afterwards ; " but he caufed the book 

c< to be held open before him, and he lifted up his right hand : 

c< th« jury upon this prayed the opinion of the court, if they 

u ought to think this teftimony as ftrong as the teftimony of ano- 

" thcr witnefs ; and Glin Chief Juftice told them, that in his judg- 

" ment he had taken as ftrong an oath as any other witnefs, but 

" faid, if he was to be fworn himfclf, he would lay his right 

u hand upon the book." 

ty the policy of That forms arc various, vid. Selden, ST. 2. 1467, and Vocts 

di countries, Pand. Chriftians were fworn fometimes without laying their 

•dm'mhteredw hands upon the gofpel, by lifting up their hands to heavenj: 

peribns accord- Jews were fworn fir it with rites and ceremonies, afterwards with- 

ing w their own out an „ j t j s ] a j n t ^ t ^ ^ policy of all countries, oaths are 

opinion, and hy- t ' . * ' * / * . , 

iug the hand ori- to be adminiftercd toallperfons according to their own opinion, 
ginaiiy borrowed and as it mofl affecls their confeience, and laying the hand wa$ 
IromtkeP-gans. or igi, la j|y borrowed from the Pagans. 

It is faid by defendant's counfel, that ho new oath can be im* 
pofed without an a£t of parliament, and for this purpofe feveral 
cafes cited. 

My anfwer is, This is no new oath. 

It was objected, that they ought not to be* admitted as wit- 
nefles from the perpetual enmity between Heathens and Chri- 
ftians, upon the authority of Calvin's cafe, 7 Rep. 1 7. and the 
c . ftatuteof the 21 H. 8. 
That Turks md This is to be underftood of fpiritual difcord only: Sir Ed- 
Infidels are ^r- war d Littleton Lord Keeper, in his reading! upon the ftatute of 
toew^renot'io tne 2 7 Ed. 3. has fcntiments there worthy of a great Chriftian 
be admitted wit- writer: i4 Turks and Infidels, faith he, are not ptrfetui ini* 
neifcshere, is a « m ;- nor j s t ] )erc a p ar ticixlar enmity between them and 

common error ' . . . . * r 1 1 t 

founded on a us \ but this 1* a common error founded upon a ground- 

g roundlrfs opi- « lefs opinion of juftice Brooke; for though there be a dif- 

™*k<. ** <c f crence between our religion and theirs, that does not 

" oblige us to be enemies to their perfons : they are the 

C 43 1 " creatures °f God, and of the fame kind as we are, and it 

cc would lie a fin in us to hurt their perfons. ,f Salk. 46. 

The neceffity of In Wells v. Williams, I L. Raym. 282. The court faid,, 

^thVtoTri 1 ©- " That ^ neccmtv of tradc llas mollified the too rigorous rules 

rousruhs ' 8 ° " ofthe old law, in their reftraint and diicouragement of aliens: 

<>ftheoldlaw, « A Jew may fue at tins day, but heretofore he could not; for 

i/aUens. rCftralnt " tnen tncv wcre l°°kcd upon as enemies, but now commerce 

AJeto may bring €< nas taught the world more humanity ; and therefore held that 

«* an:™ *3w, " an alien enemy, commorant here by licence of the king, and 

^°'€f?rm^r €i undcr ms protection, may maintain debt upon a bond, though 

* " " he did not come with fafe conduft." 

It was objected by the defendant's counfel, that this is a novel- 
ty, and what has never been done, ought not to be done. 
Thela*of£*f- The law of England is not confined to particular cafes, but is 
land not confined muc h more governed by reafon, than by any one cafe whatever. 
ca£s, but go- The true rule is laid down by Lord Vaughan^ fol. 37, 38% 
verned more by u -Where the few, faith he, is known and clear, tho* it be un* 

*ytr. 



a«en. 43 

u equitable and inconvenient^ the judges muft determine as tlie OsrrcHujfD 
14 law is, without regarding the unequitablenefs or inconvciiiency : T " ****«• 
w thofc defects, if they happen in the law, can only be remedied 
" by parliament \ but where the law is doubtful, and not clear, the 
(f judges ought to interpret the law to be, as is mod confonant to 
" equity, and leaft inconvenient." 

As to the cafe of Lee v. Lee, before the court of delegates in 
1692. They gave no opinion whether the witnefles were ad- 
aptable or not ? 

The counfel for the defendant mentioned a note of a cafe 
ttken by Mr. Bunbury in the court of exchequer, in a caufe be- 
tween the Eaji India company and admiral Matthews, *• Where 
" Orangee a black being offered as a witnefs there, faid he looked 
11 upon Jefta Cbrift as a good man, and upon fending to the king's 
u bench for their opinion, they thought he could not be admitted, 
44 becaufe he did not believe in Jefut Chrijl" 

This was a note of a cafe taken fome time after the caufe was 
heard, upon memory only, which at a diflance of time is very 
treacherous, but I think the reafon a very bad one, for the fame 
would exclude Jews. 

Another objection is, That the witnefles are not liable to a 
profecution for perjury. 

This is not true in fa& 5 but fuppofing it was, yet this is If thefe wit- 
not the only cafe where witnefles cannot be profecuted, for nejfc» were here, 
there is no poffibility of profecuting them, where the depofi- cutfcVforper-*"" 
tions are taken out of England \ but if they were here, I jury, anUmi^ht 
(hould be of opinion, they might be indicled upon a facial H" 1 ^'*"??" 

• ,- -» r t 1 1 • 1 «• r ,-• j a fpccial indi&- 

mdiament, for I do not think tatlu Jacns evatigtlns are ne- m cnt. Tt&it 
ceflary words, for feveral old precedents are, that the party faens evangjr* 
•was juratus generally, or debito modo juratus. Vide Wefs Symt. ^rl^^L 
2d pcrt % und^r the head of Indictments and Offences, fcft. 160. dtflmtntof per- 
jury, for feveral 
old precedents are, that the party was juratus generally. 

As to the precedents of indictments againft Jews, they are fo £ #44 ] 
Tarious that nothing is to be drawn from it : upon the whole, 
not to admit theie witnefles would be deftruclive of trade, 
and fubver five of juiticc, and attended with innumerable incon- 
veniences. 

Lord Chief Jii/l ice Willes : As it is a queflion of great impor- 
tance, and in fome meafure a new queition, I will give my opi- 
niet, firft,' as to the general queftion : Whether any Infidel may 
be admitted as an evidence under fome circumftances. 

If I was of the fame opinion with Lord Cuke, xlie confequence Some Infidels 
would be, that thefe depofitions could not be read ; but 1 am of m^y, under fome 
opinion that fome Infidels may under fome circumftances be ad- ^admitte"** 
mitted as witnefles. witnefles. 

My Lord Coke is plainly of opinion, that Jews as well as Hea- 
thens were comprized under the fame excluiion. 

Serjeant Hawkins in his Pleas of the Crown, though a very The Jews before 
learned and pains-taking man, is miftaken in his notion of S hcir £ xp ££? rt 
loid Ode's opinion ; long before his time, and ever fince the ^fincfthefr 
. JW returned to England, they have been conftantly admitted as return to it, 

1 'Citi a jr.- have beencotk- 



44 



3?fem 



Omychvhd The defendants counfei are miftaken in their conftru£Hort 
v. a*ksk, o £ L orc j Q G fo^ f or h e p Ut5 the^f s upon a footing with ftigmatized 
and infamous perfons : this notion, though advanced by fo great 
a man, is contiary to religion, common fenfe, and common hu- 
manity ; and I think the deviis themfelves, to whom he has deli- 
vered them, could not have fuggelled any thing worfe. 

Our Saviour and St. Peter have faid, God is no refpeclor of per- 
form. Afts 10. ver. 34. 

Lord Coke is a very great lawyer, but our Saviour and St. 
Peter are in this refpett much better authorities, than a perfon 
poffrfled with fuch narrow notions, which very well deferves all 
that Lord Treby has faid of it. 

I lay no ftrefs upon the authority of Bratlon, Briton, and 
Fletay for they lived in popilh times, when no other trade was 
carried on except the trade of religion •, and I hope fuch times 
will never come over again ; it is very plain too, thefe ancient au- 
thorities fpeak only of Chriftian oaths, 

Maddox's Hiftory of the Excheqner clears it up beyond all con- 
tradiction, that Jews were conftantly fworn, and from the 19 
Car. 1 . to the prefent time, have never been refufed. 

To this aflertion of Lord Coke> I will oppofe Lord Hale, though 
fully cited by Lord Chief Baron Parker; yet I will mention it again, 
becaufe it is full of the true fpirit of good fenfe and Chriftianity, 
and decks repetita placebit. ■ 

As to the authority of civilians, I fhall fay once for all, that 
I do not lay fo much ftrefs upon any quotations of the civil 
law j becaufe I think there is no occafion to have recourfc to 
them. 

The laft anfwer I (hall give to Lord Coke's affertion are his own 
words in G//v/Vs cafe and 4th In ft. If, faid he, an oath was 
tolHtatio^but d eaf h °f a Chriflian inftitution, then IJhould be forced to admit, that 
as old as the it could net be allowed. 

•ration. But oaths are as old as the. creation ; look into facred hiftory, 

and you will find variety of inftances, in the book of Gene/is, in 
* the 30th chapter of Numbers throughout 

The nature of an oath is not at all altered by Chriftianity, but 
only made more folemn from the fandtion of rewards and pu- 
nilhments being more openly declared. 

The paflage in the 14th chapter of St, Matthew, relating to 
Hercd and the daughter of Herodias is very extraordinary ; a per- 
fon appears there to be fo very wicked as not to (lick at murder, 
and yet thought an oath of fuch a facred nature, as to choofe ra> 
ther to commit the former than break the latter. 
" Pythagoras in his golden verfes, and Tully in feveral parts oiT 
his works, fpeak of an oath with the higheft reverence, Grotius 
de Jure Belli et Pads, 1 vol. lib. 2. c. 13. de jurejurando, 1 feem 
apud omnes populos, et ab omni &vo circa pollicitations, promiffa et 
contraBus maxima femper vis fuit jurisjurandi. 

The form of oaths varies in countries according to different 
laws and conftitutions, but the fubftance is the fame in all. 

Grotius in the fame chapter, fee). 10. Forma jurisjurandi ver* 
bis differt, re convenit, hunc enimfenfum habere dibet, ut Deusin* 

vecttuT K ~ 



[45 I 

Oaths are not 
Ot* Chriftian 



9I(Ctt. 



4S 



voatttr, putahoc modo, Deus Ujtisftt f aut Deus Jit vindex. In Omychwm* 
our old law books Jic Deus adjuvet y and other exprcflions of the T * ******* 
like nature, and now, So help me God. Vid. the 23d of Matthew, 
aoth, 2 1 ft, and 2 id verfes. 

There is nothing in the argument, that as Chriftianity is the 
liwof England^ no other oath is confiftent with it 5 and for the 
rcafons already given, this argument carries no weight with" it. 

Though I have fhewn that an Infidel in general cannot be ex- 
eluded from being a witnefs, and though I am of opinion that notbclkve** 
infidels who believe a God, and future rewards and punishments God, or re- 
in the other world, may be witnefles ; yet I am as clearly of opi- ™2** and Pi- 
nion, that if they do not believe a God, or future rewards and hereafter, 
puniftiments, they ought not to be admitted as witnefles. they ought mc 

Next as to difpenfing with ftri£fc rules of evidence : Such evi- *° be admittc *» 
dence is to be admitted as the neceflity of the cafe will allow of, ^en^uf 
isforinftance, a marriage at Utrecht certified under the feal of that fuch 
the minifier there, and of the faid town, and that they cohabited ^^ to * e 
for two years together as man and wife, was held to be a fuflici- xh t MCt ^ 
cnt proof they were married. Cro. Jac. 541. Alfop v. Bvwtrcl. of the crfs 

will allow of ? 
kr. though admitted, muft be left to the perfons who try the caufe to gire what credit to it they |dcafe« 

It mud be left to the jury or judge what credit they will give ; 
for it is a known diftin&ion, that the evidence, though admitted, 
muft ftill be left to the perfons who try the caufe, to give" what 
credit to it they pleafe. 

The fame credit ought not to be given to the evidence of an 
infidel, as of a Chriftian j becaufe not under the fame obliga- 
tions. * 

It is admitted by the defendants that this caufe relates to a [ 46 ] 
mercantile affair between Barker a merchant and a fubjeft of 
EsglarJ, and an Indian,' a merchant, and the fubjeel of the 
Grand Mogul. 

Wliat could the plaintiff do ? He had but only one remedy, 
that he takes, he follows his debtor into England. 

There can be no evidence admitted without oath, it would be Perfons whod» 
abfurd for him to fwear according to the Chriftian oath, which ^^^ 
he does not believe ; and therefore, out of neceflity, he muft be mu ft, out of ne- 
allowed to fwear according to his own notion of an oath. ceiiky, be A- 

Ncxt as to the commiflion : the certificate fully anfwers this it^ord^n/uT*^ 
objection, that it dies not appear they believe a God. their owa doum 

i cannot fay I lay a great ftrefs upon the authors which give ofaao**. 
an account of the Gentoo religion, becaufe it muft depend upon 
their veracity and private judgment; but I found my opinion 
upon the certificate, which fays, the Gentoos believe in a God a9 
the Creator of the univerfe, and that He is a rewaider of thofe 
who do well, and an avenger of thofe who do ill. 

And laftly, As to the objection of the indiclment for perjury. 

T2ii$ has been fully anfwered already by the Lord Chief Baron, 

but the plain anfwer is, that facvo-fancla evangeliam, not at all 

material words* 

Up6n 



4* aifett* 

OMYttf <**• i tJpon the whole, I am of opinion, the evidence of the platrt* 
*. ARxsft. t j^» s w i tnt fl- eSj unc | er t } ie circumftances of this cafe, ought to be 
admitted. 

Lord Chief Jujtice Lee : I agree intirely with the opinion of 
Lord Chief Baron Barker, and Lord Chief Juil ice Willes\ that 
-where it is returned by the certificate the witnefs is of a religion, 
it is fufficient \ for the foundation of all religion is the belief of 
a God, though difficult to have a diftind idea of an infinite and 
incomprehenfible Being as God is \ yet mankind may have a rela- 
tive idea of the being of a;God, as dependent creatures upon Him. 
Rates of evi- An oath is a religious fan&ion that ma kind have univcrfally 

^riU^uar- e ft aWi * ned - I would not bethought to declare an opinion, how 
tificial rules, far perfons under the denomination of Atheifts, and believing 
filmed by men no religion, may in this country be in fomc cafes admitted, but 
in couruo" ju" * ^o apprehend, that the rules of evidence are to be confidered 
tic^and founded as artificial rules framed by men for convenience in courts of 
upon good rca- juftice, and founded upon good reafon : But one rule can never 
vary, viz. the eternal rule of natural juftice. This is a cafe 
that ought to be looked upon in that light, and I take it, confider- 
ing evidence in this way, is agreeable to the genius of the lav of 
England. . 
Hearfej cannot There is not a more general rule, than that hear-fay cannot be 
W admitted, nor admitted, nor hutband and wife as witnciles againft each other, 
^witnetfe* a? ° anc * vet lt ls notorious that from neceflity they have been allow* 
ffdnfteacHother, ed 5 and as Lord Chief Baron faid, Not an abfolute necefiity, but 

wceffit ff h^e a m0ral ° lie# 

keen allowed. 6 Where there are foreign parties intcrefted, or in commercial 

T 47 3 matters, the rules of evidence are not quite the fame, as in 

The rule as to ot ^ er inftances in courts of juftice, the cafe of Hue and Cry, 

admitting evi- Brownhw 47. In Lord Chief Juftice Hale's Pleas of the Crown, 

dence in foreign vo ^ fa ^ ^oi. a feme covert is not a lawful witnefs againft 

nutters, differs her hufband in cafes of treafon, but has been admitted in civil 

trom other in- cafes : a wife admitted to prove a truft : the fame as to hear-fay 

As to admitting evidence in foreign matters and commercial, 

this is different from common cafes. 2 RSils Rep. 346. 

^'d Chief Juf- The teftimony of a public notary is evidence by the laws of 

nion, if the°va- France ; contracts are made in the prefence of a public notary, 

lidity of a foreign and no other witnefs necelTary to prove the tranfaftion : I {hould 

Sr^ltnce'of a *"* lt COUlc * ^ e n ° <*Oubt at alI » **" lt camC * n R uc fti oa here 

public notary whether tliis was a valid contract, but a teftimony from per- 
was in queftion fons of that credit and reputation would be received as very good 
temmon^wouid P ro °f * n foreign tranfa&ions, and would authenticate the con- 
be allowed to trad, Cro. Car. 365. Thefe cafes (hew that courts always go- 
authenticate the vern themfclves by thefe rules, in cafes of foreign tranfa&ions. 
***** * Preced. in Chanc. 207. Tremoult v. Dedire. 1 JVms. 429. In 

a&ions of trover, vid. Comber b. 340, 366. Doctwray and 
Dickenfin. In cafes of fales of goods a fa&or is admitted as a 
witnefs* 

To apply thefe cafes to the prefent, without delivering an 
opinioYi, Whether perfons that do not believe in any religion may 
be admitted ; as I think that thefe witnefles are under the reli- 

gioua 



aucn. \f 

gioustycof an oath, adminiftered in the mod folemn manner; Omychukd 

as this is a tranfaction wholly in the country of the Mogul \ as v * ****"• 

Barker has forced the plaintiffs to have recourfe here to the 

law of England, by quitting a country where, by the letters pa- * 

tent of the crown, they were intitled to juftice, it would not be 

confonant to natural equity to deny them the benefit of this evi- 

,dcnce. 

In the 1 3th and 14th of Cha. 2. chap. 11. feci. 29. an aft for 
preventing frauds and regulating abufes in his Majeity's cuftoms, 
there is the following claufe : " Provided, that in cafe the fei- 
11 zure or information fhall be made upon any claufe or thing 
M contained in the late act, intitled, An aft for the encouraging 
11 aud encreafing of (hipping and navigation, that then the de- 
" ferklant or defendants (hall, on his or their requeft, have a 
w commiffion out of the high court of Chancery, to examine 
u witnefles beyond the feas, and have a competent time allowed 
w for the return thereof, before any trial fhall be had upon the 
c< cafe, according to the diftance of place where fuch commif- 
u lion or commiflions are to be executed, and that the examina- 
" tion of witnefles fo returned (hall be admitted for evidence in 
u law at the trial, as if it had been given vsvd voce, by the exa- 
" minate in court ; any law, ftatute, or ufage to the contrary 
" in any wife notwithstanding." 

Lord Chancellor : As this is a cafe not only of great expence, 
bat of great confequence, it will be expected that I (hould not 
give an opinion without affigning my reafons for it at the 
lame time. C 48 3 

Firft, As to the objection of the defendant's counfel to the 
certificate and return of the commifhon, that the comtni/Jioners have 
tic! followed the direction of this court ; that they (hould have certified 
if what religion the witnejfes were, and the principles of that religion; 
Vfhereas they only certify them to be of the Gentoo religion, without 
/wring what the principles are of that religion : It was not the in- 
tention of the court they (hould, for it would have been entering 
into a wide field, and would have been certifying the hiftoryof 
the Banian or Gentoo religion. 

Cafes have been determined at common law upon evidence Cafes determined 
taken from hiftories of countries, and we have very authentic ac- de^^n**** 
counts of this part of the world. A general hiftory is evidence to from Mftories of 
prove a matter relating to the kingdom in general. 1 Salt. 281. <*untri«. 

My intention was to be certified whether thefe people believed 
the being of a God, and his providence. The 6th volume of 
Qmrcbilfs Voyages 301. particularly defcribes this religion and 
their precepts of morality j the latter precept carries almoft the 
ienfe of the ninth commandment. 

This objection being removed, the next queftion will be, whether 
thedepofitions ought to be read; which depends upon two things : 
Firfi, Whether it is a proper obligatory oath ? 
Secondly, Whether, on the fpecial circumftances in this cafe 
foch evidence can be admitted according to the law of England ? 
The general learning upon this head has been fully enlarged 
«pt»by the Lord Chief Juftice. 
*W.L E The 



48 



aifcn. 



Omychund 

V.BARriK. 

The eflence of 
an oath is an ap 
peal to the Su- 



thinking'u.ncne 
rewarder of 
truth, xnd 
avenger of falf- 
hood ; and Lord 
Coke the only 
writer who has 



The ourward aft 
is njt eflentul 
to the oacii, for 
this w*s always 



The firft author I fhall mention is Bifhop Sander fen de juris 

juramenti obligations Jurisjuramentum, faith he, eft cjjirmtii 

tel'ig'tofa : All that is neceflaiy to an oath is an appeal to the Su 

preme Being, as thinking him the rewarde.r of truth, am 

F"T Bci ^ g> k S zvcn ^ cro ^ felfliood; vid. the fame author, p* 5. and 18. 

.«» k- rphij ^ not contradidted by any writer that I know of l?u 
Lord tbhe, who has taken upon him to infert the word CLrjjHa* 
and is the only writer that has grafted this word into an oa:h 
As to other writers they are all concurring, vid Pi:jfcndt.*jf % til 
4. ch. 2. fee. 4. Dr. Tilbtfon, ift volume of his fermons upon th 
a^imm lawfu,ncfs of oaths, and/). 1 89, where the very text fpeaks plain! 
•atb. of an oath among all nations and men, " An oath for confirmation 

" is to them an end of all llrife," hebr. the 6th and 16th. " Th 
<c nccefBty of religion to the fupport of human fociety in nothin< 
" appears more evidently, than in this, That the obligation o 
Ci an oath, which is fo neceffary for the maintenance of peace anc 
c< juftice among men, depends wholly upon the fenfe and belie! 
" of aDeity." 

The next thing I (hall take notice of is the form of the oath. 
It is laid down by all writers that the outward aft is not effen- 
tial to the 0.1th ; Sander fon is of that opinion, and lb is 7/A 
nutcerof liberty, htfon in the fame fermon, p. 144. " As for the ceremonies in 
" ufe among us in the taking of oaths, it is no ju(t exception 
€t again ft them, that they are not found in Scripture, for thu 
" was always matter of liberty, and fcveral nations have ufcii 
" fevtrral rites and ceremonies in their oaths." 

All that is ncceiy.iry appears in the pre lent cafe: an externa 
aft was done to make it a corporal aft. 

Secondly, Whether upon fpecial circnmflances fuch evidence 
may be admitted according to the law of England? 

The judges and fjges of the law have laid it down that there? 
but one general rule of evidence, the bejl that the tnUure oftheccj 
will admit. 

The rule is, that if the writings have fubferibing witnefles V 
them, they mult be proved by thofc witnefles. 

The firlt ground judges have gone upon in departing fror 
ftrift rules,, is an abfolutc ftrift neceflity. Serwdly, a prefume* 
neceflity. In the cafe of writings, lubferibed by witnefles, i 
all are dead, the proof of one of their hands is fuflicient ti 
eftaMifh the deed : where an original is loll, a copy may Ik ad' 
mitred ; if no copy, then a proof by witnefles who have hear* 
the deed, and yet it is a thing the law abhors to admit the mO 
mory of man for evidence, 1 Mod* 4. 

A tradefman's books are admitted as evidence, though no ab- 
folutc necc/Tity; but by reafon of a prefumption of neccflity 
only, inferred from the nature of commerce. 

As to admitting hear-fay evidence, fee the cafe of Ccn*fm*A 
A-iich. the 2d of H^Atine* in an aftion upon a policy of inlurauce. 
There is another inftance of difpenfing with the lawful oaAi 
where our courts admit evidence for the crown without oath. . 
It is a common natural prefumption that pcrfons of the Geth 
too religion fliould be principally apprized cf fa£U and tranf 

aftioni 



C 49 ] 



An abfolnte ne- 
ceifity the firfl. 
ground for de- 
parting from 
&ri€t rules of 
evidence, a pre. 
fumed neceflity 
the fecond. 



aifett. 



49 



aftions in their own country; there is a ftronjer prcfumpticn -Owitchund 
of neceifity here than for admitting a deed of 30 years ft muling. v * Ba *" r * 
Bcfulcs all this an additional reafon is, that the parties who en- 
teral into this contract prefumed, that if they lhould be ob- 
liged to fue, it would be in their own country, and then they 
imift have been admitted- From hence it follows, that if one 
of the parties fhould leave this country and change his domicil, 
th: other would be deprived of his evidence, which would have 
been admitted there, and by that means deprived of jufticc. 

As the Englfb have only a factory in this country (for it is Courts of law 
in the empire of the Great Mogul), if we fhould admit this here win give 
evidence, it would be agreeable to the genius of the law cl Env- "^"jdjefen- 

I 1 rp. e 1 • 1 t j 1 • /- r ji 1 tence of a foreign 
mm. Ihe courts of admiralty have done it Carth. 31. Beak v. court or admiral- 
ty™//, via', the laft fecliotr, " An Englifh pip ivas taken by a **> and * ke 

II French man of war under colour of a Dutchman, and carried into wkhouuxaroin- 
tt France, and there condemned by their court of admiralty as a Dutch ing their pro- 
a frru\ afterwards an Englifh merchant bought this Jhip of the ceedin 6 s * 

" French, and conveyed her into England, where the right owner 
il hnught an action of trover for the f hip againjl the pure hafer ; and 
u nl! this matter being found fperially, the defendant had judgment \ 
M bteaup the jhip being legally condemned as Dutch prize, this court 

* will give credit to thefentence of the court oj admiralty in France, 
u end take it to be according to right , and will nst examine their pro- 
" utd'mgs : fir it would be very inconvenient, if one kingdom fljculd 

* h Peculiar laws correct the judgments and proceedings of the courts 
" ifamiher kingdom. " 

And if we did not give this credence, courts abroad would [ co 7 
not allow our determinations here to be valid. 

So in matrimonial cafes, they are to be determined according to 
tnectrcmonies of marriage in the country where it was fo'emnized. 

Suppofe a Heathen, not an alien enemy, fhould bring an ac- If a Heather, 
ton at common law, and the defendant mould briri£ a bill for noian«hcneue- 
*n injunaion, would any body fay that the plaintiff at law ^^aSuI 
fifiuid iif.rt be admitted to put in an anfwer according to h: ant a bill tor 
inform of an oath ? If othcrwife, the injunction muit l>c per- J^ir?' ?' 
Pftual, and (his would be a manifcll denial of juiticc. mitted to anfwer 

according to his own form of an oath. 

As to the mofr. material objection of the form in indictments Framcr* of in- 
fo Penury, the words fupra far.clum Dei evanpelium are not at ell ^ mcm: ;»»»1- 
_ ' i J \~., r J c • i-rt "■'' 1 • t*ply worJs to no 

JfeaiTary. ihe framers of indictments are apt to throw in pmpcfc, there- 
*ords, and to fwell them out too much to no purpofe j there- fore the eld pre- 
■ foe the old precedents are the bcfl ; and befides, as has been beft/'an"^* 
"Cry jullly faid, this would prove too much, for it would hold them uapp*«rs 
•Swell to all depofitions taken abroad. It has been faid by the >/«>?«* wJW 
Counfel for the defendant, that the fpecial laws in Spain, for '^nt^ttuy 
taking thofe oaths, are of the nature of our acls of parliament. wordi i n ir.uitt- 

I will not be pofitive, but I take i t to be othcrwife. Selden upon .™°* for * « ' 
4c laws of Alphonfo the wife, king of Arragon, faith, // is not a 
ft/rtfae law for the Moors, but authenticated by him, and transferred 
ite las code of laws * and origimlly in the nature of what our contmon 

£ a lavs 



5© 9Ifeif. 

Our c*v* * law is. Moors have their particular oath which they ought to me, 
Atstft. f n t jj a i M . naer This form of ex preflion rather (hews that I 
refers to Line. other law that prevailed long before. 

This falls in exactly with what Lord Stair, Puffendorf, & 

fay, that it has been the wifdom of all nations to adminifter fu 

cat'is, as are ag-eeable to the notion of the per Ion taking, ai 

dot* not at all affeft the conference of the perfon adminiftrin 

nor does it in any refpe& adopt fuch religion : it is not ne 

fo much a breaking in upon the rule of law, as admitting a pe 

fon to be an evidence in his own caufe. 

Thecafc of the I w ;n j u ft take notice of the cafe of the Ea fl- India Conipan 

paly ~^*admi- anc * Admiral Matthews. I was counfel myfelf in the caufe, bi 

rai Ma.tbewi, do not at all remember fending either to the court of King 

in the court or Bench, or Common Pleas, for their opinion. Mr. Bunbury h: 

ftited^torth^re fta ted it as a trial at bar before Lord Chief Baron Reynolds, ar 

it nofuch thing therefore it could not be done, for there is no fuch thing : 

*ud fen o"t* V* ^ en ^ n S onc j u ^3 c out °^ a court to tne judges of another upc 

court to the a point of evidence. As to the cafe before Lord Chief Julti 

judges of another Eyre, the perfon there would not be fworn either upon the O 

cvTdenccf° illt ° f orNewTeftamenf, and therefore ashewasnot a Chrijlian, \ 

would not admit him to be a witnefs: but, upon the fpeci 

circumftanccs of this cafe, I concur in opinion with my Lor< 

the Judges, that the depofitions of thefe witnefles ought to I 

read as evidence in this caufe, and do therefore order that tl 

objection be over- ruled, and the depofitions road. 



[ 5 1 ] Ramliffinfeat v. Barker and others. 

November the y T came on upon the joint pleas of the widow, and the fon o 

*+th 1737. J^ ^ j ate ^ r Barker, governor of Patna in the Eajl Indies 

Cafe 1 1. wn0 j^jjj j n hjj. lifetime employed the plaintiff in private trade 

Ante 19. S. C. as n j s oan y an or broker : they being made defendants to a bi) 

A bill brought brought againlt them as die reprefentatives of Barhr for an ac 

for an account « . b 1111 1 1 • • n- »• > 

againfttherepir- count; it was pleaded that the plaintiff was an alnn born % an 
Tentative* of an an alien infidel, not of the Chriltian faith, and upon a end 
nor, who plead- b*U incapable of being examined upon oath, and tlierefore dil 
edthit the plain- qualified from fuing here. 

tiff was an alien 

born, and alien infidel, and could have no fait here. 

The plea over- . £, or j Chancellor faid, as the plaintiff's was a mere pcrfonal d< 

"mreperfart mima \ it was extremely clear that he might bring a bill in th: 

demind, the court ; and over-ruled the defendants' plea, without hearing on 

plaintiff may C0U nfel of either fide. 

bring in a bill m 
thi« court. 



2IfCtt. 



CAP. IX. 



9.iienftmcnt. # /a £ r ^ „. AJr,^ 

(A) In what Cafe allywcd or not. %&■ /d"*?- ^ ' 

March 14th, 
1738, The laft 
Anon. leal after Hilmy 

Term, 

IT was faid by Lord Chancellor : That after puMication is Cafe I2» 
paft, there is no inftance of a plaintiff's obtaining an 
wdcr to amend his bill, withotft withdrawing his replica- ^ T J^dff 

t* 00 - (l)» cannot amend 

without withdrawing his replication. 

(l) See GtcJwIn v. Goodwin, fofi. 3 *••/. 370, 371. 



C A P. X. 

anftoeca peasf, aim Demurrer*. £ 52 ] 

(A) Whatjhall be a good Plea and well pleaded. 

Chamberlain v. Knapp. Hilary Term, 

A Will having been made for the fale of lands for pay- ~ ^ * ^ . 
ment of debts, the prefent bill was brought by a ere- ae l 5\ m****** 
<litor againil the widow of the teftator in poffcinon of fome \^^^^J ^S^ 
rf the lauds devifed, praying a difcovery of her title. ment of debts. -^ 

Bill brought by T ' Jg* % 
a creditor of teftator agaiaft his widow, to difcover her title to lands in her poffeulon. 

She pleads, that by a deed of fettlement (he had a jointure of She pleads a fet- 
al! the lands laying in a town called and that fhc was ??»«"* and 
JfiUing to make a difcovery, if plaintiff would confirm her iffers to'difcover 
jointure, not otherwife (t) ; the plea did not fet out, either the if plaintiff will 
tot of the deed, or the particular parcel of the lands contained ^jje?^ JjJ{ 

m it. the date, nor 

lands contained in the fettlement* 



Lord Chancellor held the plea bad, for both thefe reafons, and The plea over- 
Aat a purchafer for a valuable confideration would be bound to ^^J°^^f et 
fa forth thofe two matters. Plea over-ruled. forth both thefe 



matters. 



(l) See Lord Port/mouth v. Lady Effingham, i Vef. 430. Leech v. Trollop, z Vcf. 
661. Stnhoufe v. Earl, z Vef. 450. Ford v. Peering, Vej\]\iviT. 76. 

Dunealfv. Blake. February the 

J 8th, 1737. - 

THE plaintiff fubferibed a policy of infurance for a con- Cafe 14*. 
fideraiv.e fum of money ; the (hip was loft, and, as fug- 
frfted, fraudulently, and with a view of charging die plaintiff 
***** the policy. 

E* The , 



5a anftocrg, is>ieng, an* Demurrer*. 

Dhvcalf v. The hill fets forth, that the fhip, inftead of having proper mc 

lake. can tile goods on hoar J, being bound from one of the per 

h£ tfli fT 'cbs °^ ^ ;Y/;;/; A to onc or Ia ^ p°rts in France, had or.iy wool on h?zn 

the (h p wLioit By the interrogatory part of the bill it was prayed, that the il 

fraudulently, fendant might fet out wha* kind of .goods he had on board, \vh 
andinthccurg- .1 • • " • 1 fc .u i\ • 1 1 

ingpjutmen- tac mv.^vs were, in what m inner the lhip was cleared, a: 

tioo* :hat f in- whether ilie had not arms on board her. 

ftead of proper 

good., th re * s only wool on board j and in die interrogatory part, prays defendant may let oat w] 

kind 0: goods hs had on board. 

P c? ] The defendant, as to fo much of tic bill as fought a d 

D?f-ndant pleads covcry of the particular nature and quality oi die goods mc 
th't'niake Upe- *^ onc ^ to ^ flipped on board the faid ihip to be fciit to Fram 
nai to export and what quantity, pleaded an act of parliament of 1 Will, f 
wo>i, ii bum a jtf nn %} mt no w:ol [ball be [hipped frjrn Ireland, hr imported fn 

ducoveryof oil . J , T . J *' J • T \ 

kind of ioods on thence to any port but .Liverpool, and feme others in hngiam 
board, which was afterwards made perpetual by the 7 Will. & Ma 

and by another act made the 10 ^5* 1 1 W. 3. it is enacted, Th 
none fbcll direct 'y or indiretl J y export frcm Ireland into any fced^ 
dominion any woof, and all •. [fenders cigtunj} this acl are made lint 
to the forfeiture of the faid iujoI, and alfe to a forfeiture of 500 
for every offence That the vr.Iuc of the cargo on board tl 
faid fhip, and infurcd by plaintiffs, is by the policy jfccrtaii 
ed at 3joo/. by the fum infurcd thereon, and there! ore it c« 
no ways concern the plaintiffs to know the pa.ucular* of tl 
goodi •, but the difcuvery thereof may oceafion fever al forfei 
ures, and the bill charging that the goods fhij ped on bear 
feY. by the defendant, were to be font to Ponlrrjfe in Fram 
which by the laws and ftatutes of this realm is prohibited, aJ 
highly penal, and the difcovery manifeitly tending to draw 
the defendant to accufc hiitm-lf 5 he fubmitted, Whether i 
fliould be compelled to make any other anfwer. 

The Attf..:iev General for the plaintiff admitted, that, in t! 

charging part of the bill, nothing was mentioned to be 1 

board but wool ; but, by the interrogatory part, defendant 

aiked in general, V/hat hind of goods he had on hoard ? ai 

defendant's p!ei goes in bar to a difcovery of all kinds of goo 

which wtre <>n board. 

The plea allow- Lord Chancellor allowed the pica (1); but agreed, if oti 

gooa^Tu^l ki::a of ^ :;d - 4 hvA bccn "v-ntioned in the charging part, the c 

m«.-id-jnc»lin;"i» fendarn might have been obliged perhaps to Lave given ioi 

chv.-gi'ig?.rc, if an tVer to it, but as there was not, defendant was nor oblig 

otiir.,, defendant to • lP! * v '<-' r that mterrogatorv part: lhe only doubt he had v. 

malt hav^ ^Ivcu as to the c!c:'.r;n^ ct ihz ihip, and having arms on board, a 

f*ne aniwerto j t nan Q c t j ^j;; j . ; ; Km u] lt afterwards might be covered w 

it. * ° ^ 

the plci 

Agreed in this cafe, that a plea may be bad in part, and ; 
not io in th<. whole {2). 

(i^SeeHm^-iv.^a/'^f,;.^ 528. Derby v. Dukr of Atboi, I Fef. 2( 

and th.- ..ltc^ ci:tu theit 111 note uruier Eaji India Company v. Can.pbcll, it 

P*£ r S 9 2 47- tiffb v. F.uco, 2 Vtf 4^2 1 

(z) r...r; cf $::fi% v. G-.v/, p*fl 45 1. fi^.n of SoJor and Man v. Earl of J)* 

Karri/** v. $our»(Qtf, 1 o,l. 559. Eat J of ibid. 557. 



anftocw, pcasf, anti Demurrer*. $3 



DeggS V. Colebrooke. Fehrumry the 

19th, 1738. 
Vide title Cofls. 

March the 3d, 

Morgan v. Morgan. 1738. 

IT was in this cafe laid down hy Lord Chancellor as a rule, Cafe 15. 
that where a defendant pleads a decree of dii'miflion of a 
former caufe, for the fame matters, in bar of the plaintiiFs de- 
mand on his new bill, if the plaintiff does not apply to the court, r C4 i 
that it may be referred to a Mafter to (late, whether there is L 
fuch a decree, but fets down the caufe upon the new bill for 
bearing, it is a waiver of his right of application for fuch refer* 
coce, and the court will determine it. 



Chatman v. Turner. A Vf die 9 th, 

*739- 

J ORD Chancellor; The defence proper for a plea muft be Cafe 16. 
^ fuch as reduces the caufe to a pn. Ocular point (1), ?v>d Thedefencepro. 
from thence creates a bar to the fuit, and is to fave the parties P er frf a / k » 

. ... * . . r . r n,uft be fuch as 

"pence in examination, and it is not every good defence in equity rc d UCC8 th' caufe 
due is like wife good as a plea ; for where the defence confius to * particular 
tf a variety of circumitances, there is no ufe of a plea, the ex- ^J?^/^^ 
aaination muft ft ill be at large, and the effect of allowing fuch bar to.tn- iuit, 
a plea, will be, that the court will give their judgment on and ev r> g .*i 
the circumirances of the cafe, before they are made out by ^"uikew^ 

proof ( 2 )• good as a pica* 

(l) Wbitbread v. Broclburft* 1 Bio. (2) Brownfwxrd v. Edwards, Z Vef. 

Cba. liep. 417. 247. 



CAP. XI. 

apprentice. 

Vide title Majlcr and Servant. 



CAP. XII. 

Srreff. 

(A) JVhere good though on a Sunday, 

Ex parte Kerncy. ftifw' 

TH E petitioner, who had been an affignee under a com- Cafc 1 7. 
miffion againft Philip Shchan, was ditcharged by ordtr of o Ifamanii 
brd Chancellery and directed to convey to new atiienecs, and liable to b- ar- 
reted while 
under the fommoos of commiffioners of bankrupt!. 

£4 to 



5* anffo?rjE?, fHee*, ana Demttrrcrg. 



DnvcAT.r v. The Mil lets f^rth, that the Ihip, inftead of having propc 

lake. cantilo :>oods on board, ochig bound from one of the 

u- n !.\, r CT "a. of IrtijnL co one or* rl^ ports in l ; rmtce % lr.id or.iv wod o:*. i 

the ft pwi. iort By the interrogatory part or the bill it was prayed, th.iE t 

fraudulently, fend ant mi^ht fet out wha* kind of.^cn>ds he 1. id on K-ard, 

and in the c nr^- « . . , , ., . . 

ing pAit men- tao »nv/>ves were, in wnat m inner the lino was clears 

tion. ;hat, in- whether the had not arms on board her. 

ft sad or" proper 

good , th re * s only wool on board } and in die interrogatory part, prays defendant may fc: c 

kind o: gooda he had on board. 

r c? 1 The defendant, as to fo much of tie bill as fought 

D?f ndant pleads covcry of the particular nature and quality oi the good* 
thV.nake ic pe- lKmt ^ to ^ fhipped on board the faid ihip to be Cuit to ) 
nal to export and what quantity, pleaded an act of pailiamcnt of I IP 
wj>il y iibutoa ]tf art That no <w:ol (hall be hipped /#•;:« Ireland, hr imfcrta 
ducov^yof oil . m . . i . t • i t r t • t* 

kind of &n»is on thence to any port but Liverpool, ami ptne ethers in Jin, 

boird. which was afterwards made perpetual by the 7 Will* tst 

and by another att made the 10 CJf 1 1 Z/ 7 ". 3. it is enacled 
none Jhc.ll dire J 'y or indirePy e\f srt from Ireland into cry ^ 
domhii.jj! atty nvooL and all .{feeders tignitij! this acl are htMii 
to the forfeiture of the /aid nv sol) a?ul ulj.i la a frftlture of 
for every tffenc; That the vrluc of the cargo on boa 
faid ihip, and inCuud by plaimitfs, is by the policy ale 
ed at 3J00Z. by the i'um in Cured thereon, and theielore 
no ways concern the plaiutilis to know the pr.. i.culan 
goodj •, but the difjuvcry thereof may ocealion tevcral i 
ures, and the bill charging that the goods (hi] ped on 
t5>. by the defendant, were to be Cent to PontrtfTe in j 
which by the laws and (latutes of this realm is prohibits 
highly penal, and the difcovery mantfefMy tending to di 
the defendant to accufe himself; he. fubmitted, Whet 
fliould be compelled to make any other anfwer. 

I lie Act'-.. -lev General for the phiintiiV admin d, that, 
charging part of the bill, nothing w..s rncntion;.d to 
board but wo;-!; but, by the interrogatory put, defem 
a;ked in general, What hind of goods he had on board 
defendants plea g'*es in bar to a difcovery of all kinds of 
which were • ■••! board. 
The plea allow- L.rd Clonccllor allowed the plea (\\\ bur agreed, if 
^b™l ^"1 <* ?*?: M ^» motional in tk- ch,r--i-..\; P :,rt, t 
iue.»ci'jnwJii.'i5 t-jTUMiit 'nig.it have been obliged perhaps to have g'vei 
cku-iji'is? 4 ^ " u'llVer tu it, but .as there was not, defendant v.- as nut ( 
otiic, d.-iJodant to ;» 1 -5-'*'er tiiat mtorrogatorv part: 1 'ie only d.-ubt he he 
muit havr £\v.:i\ as to the clear'ii^ cf th : ihip, and ha\i:i:; ar:^s i«n bonrc 
f, : ne anf«rcrtu j t a c Q c t | ^j;; J ; ; 1:;U uh : afterwards migl-t be cover* 
it. • o t* 

the p!e 1 

Agr-ed in this cafe, that a plea may be bad in part, a: 
not fo in th«. ".hole (2). 

. ( 1 ^ See H.m /, 1 \ . ^ -*u: ':stc, p -• '} q 7. 8. Dcby v, 
and th.- -.ate* ci:eu tiicic m note uruier /i'«, 
page 5 9. 

(2) t'_r; cf Szf« : & v. C-X- .-.»/, /><y? 451. 
Karri/** v. Sou.'t/i'vte, j:o,l. 559. E:ni o f " 




5* ' a«e(f. 

Ex part* to account fcvcn days after he had conveyed to the new aflignees 
and pafled his accounts ; but being aji incumbred pcrfon, h< 
begged the commiflioners would give him their fummons fo: 
the next fitting under the commiTlion j the commiflioners tol< 
t 55 J him, that as he had done every thing that was neceflary in pur 
fuance of Lord Chancellors order, it would be of no ufe t 
him ; but however upon his importunity they did give him the: 
fummons. 

Kerney attended on the day mentioned in the fummons, an 
was examined two hours; as he was returning home, or 
Lawn a iherifPs officer arretted him, and notwithdanding Kn 
ney ihewed him the commiflioners' fummons, he damned it, ar 
faid he did not regard it of a farthing, and kept him in cufloc 
fevcra! hours. 

The petitioner now applies to Lord Chancellor to be difchar£< 
from the arreft, and that the officer may b« cenfured for h 
abufe of the commiffioners* warrant of fummons. 

Lawn the (herifFs officer admits the arreft in his affidavi 
but denies his abufing the fummons. 

Lord Chancellor ; i think this a matter of great confequence. 
ijly Material as to commiflioners of bankrupt in general. 
idly, Material with regard to the liberty of the fubjec"t. 
jrf/y, Material in other commiflions under the great fea 
as of charitable ufes, commiflions of lunacy, &c. for {ham ai 
reds may be fet up, even by the perfons themfelves, in order t 
prevent their attendance to be examined as witnefles before fuc 
commiflioners. 

Ordered, That Charles Lawn, before the next day of pet 
tions, give fecurity, to be approved of before a Mailer, fc 
his attending de die in diem, to anfwer interrogatories to b 
exhibited concerning the contempts charged upon him in th 
affidavit of the petitioner, late aflignee of Philip Sbehan. An 
if Lawn (hould not give fuch fecurity, ordered, he ftoul 
ftand committed to the Fleet for the faid contempts; and 
Lawn 'fhall give fuch fecurity, then ordered that the petition* 
do within a week after fuch fecurity exhibit interrogators 
before the Mailer, for examining Lawn touching the faid coi 
tempts, and that Lawn do attend the faid Mailer de die in dit 
for that purpofe. 

And as no precedents have been produced of like cafes h 
fore the court, of arrefts, notwithdanding commiflioners* wa 
rant, tho* it very probably may have happened ; let the petiti< 
(laud over till the next day of petitions, and a fearch be ma 
for fuch cafes, and what the court have done upon it 5 and 
the mean time recommended it to the counfel for die (herif) 
'officer, to advife him to difcharge the petitioner (1). 

(l) See Ex parte Dick, and Ex parte Stow, 2 Black. Rep. 114a. 



arret.- ss 



Ex parte Whitchurch. J une Ac 2 *» 

*749- 

HANCOCK and Hooper, the affignees of Halliday, a Cafe 1 8. 
bankrupt, obtained an order for a Mafter to take an ac- The petitioner 
count of the dealings between Whitchurch and the bankrupt, ^^b^rf 
f who reported 23 1 /. 5 /. o d. to be due from him to the bank- chancellor** tip- 
ruptj and on arguing exceptions to that report, Lord Chancellor foff> under a 
fettkd the fum ar 226 /. only, which Whitchurch was ordered to ^Irtfor a con- 
pay to Halliday ^> affignees. tempt in dif- 

obeying an order; 
know prayed to be discharged, infixing his arrcft and commitment to the Fleet was illegal, being con* 
twy to the ftatutc of the 19 Car. 2. e. 7. /. 6. Lord Chancellor doubtful at firft, but on connderatMft 
dottgin it a lawful arrcft, though on a Sunday. 

Whitchurch not paying the money purfuant to the order, on [ ^56 J 
Ac 19th of June his Lordfhip granted the following warrant fory ^ ^ s 
apprehending him and carrying him to the Fleet. ~*J* 

" In the matter of Edward H alii day, a bankrupt, / /G^t.y* ^ y/ - & 

"Whereas by an order dated the 28th day of November, ^ 
"made in this matter upon the petition of Jonathan Hancock 
" and Richard Hooper, affignees of Edward Halliday t,he bank- 
" rapt, it was ordered, that William Whitchurch Jhould Jlatid 
" committed to the prifoh of the Fleet, for his contempt in the 
" faid order mentioned, and that a warrant for fuch his com- 
" mttment fliould iflue accordingly ; thefe are therefore in pur- 
suance of the faid order to will and require you forthwith, 
" upon receipt hereof, to make diligent fearch after the body 
w of the faid William Whitchurch, and wherever you (hall find 
" him, to arreft and apprehend him, and to carry h ; m to the prifon 
" of the Fleet, there to remain till further order, willing and re- 
" quiring all mayors, Jherijfs, jujlices of the peace, conjlables, hiad- 
" boroughs, and all other his Majejlfs officers, and loving fttbjetls 9 
u to be aiding and affifting to you in the due execution of the pre- 
H mips, as they tender his Majefty's fervice, and will anfwer 
u the contrary hereof at their perils j and this fhall be to you, 
* or any of you, that fhall fo do the fame, a fufficient war- 
M rant. Dated this 16th day of June 1 748." 

HARDWICKE, C. 

To John Ey/es, Efq; Warden of the 
Fleet, or nis deputy, attending 
the High Court of Chancery. 

By virtue of this warrant Whitchurch was on Sunday the 9th 
tf October laft, between 4 and 5 in the afternoon arretted at 
Fmme in Somerfetjbire, by James Ad!am>> his Lordfhip's tipflaff, 
by the order and dire&ion, and in the prefence of Mr. Stephen 
Hurray, folicitor for the affignees of Halliday, and by them 
detained at Froomt till Monday morning, and then conveyed by 
AiUm to the Fleet prifon, where be ftill is charged with that 
warrant only, 

m The petitioner infilled that being arretted on a Sunday, by 
Woe of a warrant founded on his Lordfhip's order, for non- 
payment 



3rtcff. 



Ex ftrlt 
Wmtcuvkcx. 



r 57 3 



a man miy 
furrender hlm- 
i'At voluntarily 
to xny warrant 
upon 2 Sunday* 



payment of money only, and not for ireafzn, felony > er hrcach cf i 
peace, it is contrary to the ftatutc of the 20/h of Charles the S 
cond, ch. 17. intituled, An Aft for the Letter obiervation 
the Lord's day, commonly called Sunday, fee. 6. " Provid 
" alio that no perfon or perfons upon the Lord's day i\v 
u ferve. or execute, or caufe to be ferved and excuted, ai 
" writ, procefs, warrant, order, judgment, or decree, exce 
u in cafes of treafon, felony, or breach of the peace, but th 
" the fervice of every fuch writ, prucefs, warrant, order, jud 
" ment, or decree, fhall be void to all intents and purpol 
" whatfoever. ,, 

And therefore, the arrcft being illegal, inftfled that he w 
illegally detained in cuftody, and ought to be difcharged. 

Againft the petition was read the affidavit of James Adlai 
" who fwore that on the 9th of OSlober laft, being Sunday 
" the evening, Whitchurch came into the \ard of the Gezrge It 
u in Froomc, where Adlam was, and he thereupon told H'h. 
" church he had my Lord Chancellor's warrant again il hin 
" to -which Whitchurch immediately anfivered, ' he hienv it, and 
u heard he ivas there, a?:d came on purpfe to he taken up ; and tl~ 
" ht feveral times after, both the fame night and the next el 
€t declared the fame," 

datum's affidavit waj confirmed by two others tc the fame < 
feci. " He likewife fays he has often been told, and alwa 
** apprehended thefe warrants for contempts might be execut 
u on a Sunday, and he has himfclf done it feveral times, aj 
€l was never complained of before on that account." Ai 
it is agreed on all hands that a commiflion of rebellion may 1 
executed on a Sunday, though it iflucd for want of an appea 
ance, or an anfwer only, and it does not appear to the offio 
by the warrant for what the commitment iliues, as may be fee 
by the copy of the warrant. 

Mr. Attorney General againft the petition cited 6 Mod. 9 
Carth. 504. and the fame cafe in Sulk. Parhr v. Sir Williu 
Moore 626. 

Lord Lhancclhr : It appears from the affidavits, that there 
not any occafion for the court to make any ftrerch in the pet 
tioner's favour, and he was bef.des endeavouring to defraud tl 
creditors of Halliday by abfeonding. 

When this petition came on before, I was a good deal doub 
ful, and rather inclined to think it was a cafe within the ft 
tute of the 29th of Charles the Second ♦, but upon looking in 
the matter fincc, I have in a good meafure altered my mind, ai 
think it a lawful arreft, though on a Sunday. 

But I will obferve firft, as to the voluntary furrendcr of t) 
petitioner to ddlam my tipftaff. 

The flrength of the evidence goes to his voluntary furrcudc 
for the fact is pof'tively fwom to by three perfon.;, and dern< 
by Whitchurch's affidavit only •, and there can be no doubt b 
a man may, if he pleafes, furrendcr hiinielf voluntarily to 11 
warrant on a Sunday. 

T 



arteff. 57 

The order of commitment which has been made in this caufe, E»part§ 
is very different from procefies that iflue to (hcriffs, farV. for J t W " ITCHVECir * 
is, Tfat tkf party Jb,uhl dand committed, and is different too from jJ^J^f 
mo.'l of the orders, in other courts, here, tbattbt 

fanyjbmU 
fgnd cammed, and if petitioner had been prefent when the order was pronounced, he wat inifcandy 
a primer. 

If this man had been prefent in court when the order was 
pronounced, he was inftantly a prifoner, and the warden might 
have taken him away to gad direclly. 

The books of praclice, though 1 do not fay they are of autho- £ 58 1 
rity, yet all agree in laying it down that the party is coniidercd 
as a prifoner from the time of the order pronounced. , 

This is a warrant dircftcfd to the xery gaoler to take him and 
carry him to prifon, and differs from warrants of other courts, 
tiich arc directed to therifTs, and other minifterial officers, and 
not dire i\ed to the gaoler ; and I do not know that this is done 
in any iniUnce, but where the party is confldered a? the prifoner 
of the gaoler from the time of the order pronounced. 

F.Lape -warrants are in aid of the gaoler, and command all 
oSctrs, conftables, &c. to aflift him. 

And thir» very warrant is drawn up in the fame manner, and 
therefore alike in this refpeft, and efcape-warrants may be put 
in execution on a Sunday. 

In the cafe of Sir ■ Cecily and others of the town of Lowl Chief 

Mngham, Cafes in King William's time 348. " The' quef- £^f^f 

w tion was, Whether ferving an attachment upon a Sunday for might be uken 

M a contempt was within the ftatute againfl fabbath-brcaking f u P on a Sumiaf 

"Said Lord Chief Juftice Holt, fuppofe it were a warrant to ^ten'pt* be- 

a take for fernery, perjury, t£t\ fhall they not be ferved on a caufe in the na- 

* Sunday? And fhall not any procefs at the Kinr's fuit be *" of a breach 
■r 1 o r n r^ 1 / i 1 • r^ i 1 ot the peace, and 

served on Sunday? Surely the Lord s Day ought not to be a an exception out 

"fan&uary for maiefaclors, and this cafe partakes of the nature of the a& of 
"of procefs upon an indictment " parliament. 

So that Lord Chief Juitice Holt was inclined to think that a 
man might be taken u^on a procefs of contempt on Sunday, be- 
cause it was in the nature oi a breach of the peace, and an ex- 
ception out of the aft of parliament. 

7. If a man may be taken on an attachment for non-perform- Held that a man 
ancc of an award upon a Sunday ,1) as was held by the court of n O; t* aken 
Common Pleas in a cafe cited by the Attorney General, why is an attAcnment 00 
not a contempt for non-performance of an order of this court, for noa-per- 
ftjually a breach of the peace, as the non-performance of an ^a^Vconl 

*W*rd. tempt for non* 

performance of 
an order of this court equally a breach of the peace* 

8. Therefore, as it feems to be warranted by the words of the 
warrant itfch, that he is a prifoner from the time of the order 

(1) In King v. Myers, 1 Durn. & Eaft's awird upon a Sunday, was feid to have 
fop* 266. the calc here cited of an at- been over-ruled by fubfequent caies. 
tachment fcr non- performance of an 

pro- 



5* arreff* 

Ex pane pronounced, I will not difcharge him, efpecially as he 
■itckvrch. w j t i 10U t remedy ; for he may bring an habeas corpus^ or ; 
lord Chancellor tion of falfe imprifonmenr, and therefore order that the p 
aSf!?*?!" fo * h « difcharge be difmiffed. 
»oe without re 
medy, for he may bring *n habeas corpus, or an action of fallc imprifonmcat. 



[59 3 



CAP. XIII. 

21Tct0. 

Vide title Heir and Ancejlor, and Executors and Admir.'if.r* 

FJrwsrj&t Ryallv. Rynll. 

4th, 1739. J J 

S.C.Amb.413. T^HE teftator gave feveral legacies, and made B. hi 
*Xgive« feveral J cutor and rcfrduary legatee, B. receives all the 
kfrj^j? ™ d and buys lands with the money, and dies, and likewife b 
ccutor and refi." tnc equity of redemption of another cftatc on which reflate 
Awry legatee, a mortgage. The bill was brought by the feveral legatees a 
fc^tT'wd tne *<hnintftrator and licir at law of B. to be paid their ki 
Wys lands with out of his real and perfonal cftatc. 
tbe money, and 

dies, and alio bought the equity of redemption of anoth-r eftitc .on which A. had a mortgage 
brought by legatees, to be paid their legacies out of^fs real and perforul f itat?-. The court < 
» inquiry, whether part of the aflets were laid out in the purchafe of an eilite, and it the 
declared they ought to be rettorcd to teftator's perfonal eitue. The equity of redemption 1 
be aflets. 

Firft queftion, If the perfonal aflets are not fufficient, 
ther the legatees may not come upon the purchafed eftat 
fatisfa&ion ? 

Second queftion, "Whether the equity of redemption o 
mortgaged tftate bought fince the death of the teftator, ma 
be coniidcrcd ftill as the aflets of the teftator, and liable t 
fwer the legacies ? 

For the plaintiffs was cited die cafe of Bolncy v. Han 
before Lord King, July the 4th, 1729, 

For the defendant, Kirk v. IV ebb, Pree. in C6. 84. and K 
T. Mi/ward, 2 Vern. 440. 

Lord Chancellor: Courts of equity have been very can 
how they follow money which has been laid out in land 
caufe it his no ear-mark, though they have done it in 
cafes ( 1 ). 

The principal difficulty in thefe cafes is, with regard tc 
proof; for the different interells of the parties introduce a 
trariety of evidence, and is no fmall temptation to perjury. 

(l) Vide Kirk v. TVcbb, Prcc. Cba. 84. 2 Verm. 440. S. C. 2 £;. jib. 744. 

H**n r. Herwn. tbH. 163. 2 Eq. /fb. S. C. Drg v. Deg/ z P. U>\ 

744. S. C HaLot v Maikant, Prec. tVaitiv, If'Urivo d, foft.z vd. t;g 

Cm 168. 2 Eq. Ah. 744 pi. 3. S. C. Ba!gncy v. Hamilton * M'ib.^1^. L 

Kinder v. Mifavard; Prcc. Cba. 172. DigbtQH, Amb^ 4 c 9. 




9ffet!S. 59 

But in tlie prcfent cafe I think it is neceflary there {hould be *j£« J- 
an inquiry, whether part of the affets of the teftator have been 
laid out in the purchafe of an eftate ? Becaufe if it (hould plainly 
appear that they have been fo laid out, they ought to be reftored 
10 the peifonal eftate of the teftator, 

Suppafing the executor had been living, and had by his an- ^^"J^f 
fwer owned that he had laid out part of the affets in fuch purchafe, ££ name of •■*» 
•it would have removed the objection of fraud, and perjury, by andthemonejr 
letting in parol proof; but the perfon now before the .court is f t ^* y tt ^ ^ 
only tlie adminiilrator of the executor, and though he does in- withftanding 
deed admit that credit is given to the accounts of the executor, there is no deck, 
yet this is no evidence againft the infant heir at law, but it is by^em^naT* 
ground for an inquiry into this fa£t, and the means of coming purehafer. 
at Ah by way of refulting truft is excepted out of the ftatute of 
frauds ; if the eftate is purchafed in the name of one, and the L °° J 
moncf paid by another, it is a truft notwithstanding there is 
no declaration in writing by the nominal purehafer ( i), and upon 
enoiriry a little matter will do to make it a charge pro tauto* 

A$ to the fecond point with regard to the equity of redemp- 
tion, I think it is very clear that it muft be confidcred as affets, 
«ul liable to the legacies. 

(i) Lyd v. Spillct, f»Ji i vol. 150. 



CAP. XIV. 

afrfttt) an* Srbitcemetit. 

( A) Parties only ajfeEled by it. 
(B) For what Caufesfet afide. 

(A) Parties only ajfeffci by it. 

Thcmpfon v. Noel et al\ ***«' ***** 

a 1738. 

FOV/LER, one of the defendants, enters into articles pre- ^\^ n 
vious to his marriage, in confideration of 1100/. portion, previous to kit 
toveft 1000/. in truftees within fix months after his marriage, m irr * la 8 c a s r «? 
the inttreit thereof to be received by him and his wife, during ^fj^e'ia! 
their lives, and afterwards the icoo/. was to be equally divid- ureft thereof to 
"I between the ill tie of that marriage ; and, as a farther fecu- b ^ "^f ? d by _ 
nty lor the performance of this agreement, gives a warrant of during their 
attorney to the trufUes to confefs a judgment for that fum, >»*", andafcer- 
*hich is foon afterwards entred up: Fowler alter that enters ^j between 
into a partnership in the wine trade with one Hamilton^ and being their iflue, and 

gives the truf* 
*» a vuraatof attornry to confefi a judgment for that fum which was entered up jrccordiugly. A- 
C9Rr« in» partnership with B. afterwards* and being ndebttd to the partnerflrip eltatc ii. more than 
Ut iatcrcft in chat eftate, they fubmit the difference be:w.xn them to arbitration , and par: of thr ftoclc in 
Indeh awarded to be lodged in the hands of a third perfon; any part to be delivered to either of the 

ufciag it appear* any bond or other debt due from the partnering h*J been piic b/ either, 

r o he dekveied in proportion 10 the money pau{. 

indebted 



(i Stoat* anH atbftrement. 

Thompson^ indebted to the parrnerfhip eftate in a larger fum of money than 
oxtcta1 ' his intereftin the partnerlhip effects, or any other propeityhe 
had, could fatisfy, the two partners fubmit the difference between 
them to arbitration, and accordingly a parol award is made, that 
40 pipes of wine, part of the flock in trade, fhould b-j lodged in 
the hands of a third perfon, one Hayward; but any part thereof 
to be delivered to either of the partners on producing anv bond, 
bfc. which had been entered into on account of the partner/hip) 
paid off by the party producing the fame ; the 'quantity of wine 
to be delivered to be in proportion to the money fo paid off. 
The tniftees in The 40 pipes of wine were accordingly depofited, with the 
tides bring a " confent of Hanvltm and Fowler, in the hands of Haytvard, after- 
fcire facias ou wards a fare fa* is brought on the judgment fo confefled to the 
confdWto 1 * trustees in the marriage, articles, and a moiety of thefe 40 pipes 
them, j d take a taken in execution by zferi facias as the property of F&wler. 
moiety of the 
depofited ftock. in execution as the property of A. 

Bill by the part- The bill is now brought by Hamilton, who is likewife a fe- 
tofct?fide e che 0rt P aratc creditor of Fowhry and twelve other creditors on the ac- 
execu;ion,indto count of the partnerthip, to fet afule this execution, and to 
h*ve amoiotyof nive the value of the moiety of the 40 pipes of wine approorU 

the ftock fo . , riit e • 1 r i* r r % 

ieized app opri- ated to the payment ot the debts of theie creditors, fuppofing 
ated to payment the pipes of wine fpecifically bound by the award, and the exe- 
infilrh'ttwas cution °f * f > ^y depofiting them in the hands of Hayivard ac- 
fpe irkally cording to the award, 
bound by the 

award, and the execution of it. The plaintiffs being no putties to the fubmiflnn, nor privy at all to 
the tran&clion, nor uid«r an obligation or* abiuing by the a ward, ou&ru noc to have tike benefit 
of it, and therefore bill diimiiicd. 

Mr. Fazaherley for the plaintiff", taking it for granted the 

award with refpeefc to the depofit of the wine was intended as a 

prc-ifion for the creditor* on the partnrrfhip account, and, as a 

fecurity for the payment of their debts, infilled that every award, 

when made, was confidered, in point of law, as the very aft of 

the parties fubmitting to the determination of the arbitrators, 

and us the agreement of the parties themfelvcs; and it is upon 

that foot an action of debt lies againft the party on the award, 

for when a fubmillion is made a rule of court, an attachment 

lie* for non-performance of the award, as a breach of his own 

agreement, which by nil'. 4 of court he had engaged to perform ; 

and that this cafe therefore mud be confidered in the fame light, 

as if the parties themfelvcs in the firft inftance had, without the 

intervention of any arbitrators, agreed to make a depofit of thefe 

pipes of wine for the purpofc mentioned in the award ; that in 

fuch cafe the creditors, tho' there might be no alteration in the 

property made thereby, would have an equitable lien on thefe 

wines fpecifically in fatisfatfion of their debts, and as fuch would 

prevail againft any execution afrerwards at the fuit of any other 

perfon ; that the judgment creditors here, the truflees, merely at- 

fuch, had no int^reft in thefe wines, but that right muft arifej 

if at all, from the fieri facias % which could not take place here, 

as there was a prior equitable lien upon them : That indeed. 

where 



atnaru nntj arMtwment. 6* 

c »oods arc fpecifically bound in equity, and a pwchafer T«twMoir 
3ut notice, £*<:. afterwards pains a legal right in them, T * ***"•«**■ 
ig advanced his money at the time upon the credit of thefc 
goods, as fuch purchafer has an equal equitable lien, and 
aw too on his fide, his right will prevail ; but it is other- 
where the creditor at the time his demand firfl accrued, 
1 only on the perfonal fecurity, and general credit of his 
>r; there any legal right which he obtains afterwards in 
)f the efFc£rs of his debtor, muft be fubjecT. to every fuch 
or equitable lien, which they were liable to in the hands 
e debtor hrmfelf, and fuch creditor can only (land in the 
: of his debtor; as in the cafe or bankruptcy, the aflignees, 
tho* perhaps equally creditors with any others (who have 
c obtained an equitable lien on any of the bankrupt's ef- 
fpecifically) and have the law on their fide too, the pro- * 
r of the bankrupt's efr'ecls being veiled in the aflignees, yet 
mud only Hand in the place of the bankrupt, and take his 
is fubjecT: to all thofe equitable charges, which thev were li- 
to in the hands of the bankrupt. Vide Salb. 449. Taylor 
Txcler, and Fq. Caf. Abr. 320. Burgh v. Francis. 
Ir. Noel e contra infilled that the creditors had no right to 

I a bill to have this award carried into execution, not being 
es to the fubmiffion, nor concerned therein, it being a 
cr altogether tranfa£led between Fowler and Hamilton only; 
hercfore as the creditors would net at all be concluded by 
award, but at liberty dill to purfue their remedy as they 
jht proper, for the recovery cf their debts, there was no 

II why they (hould have any benefit from this award, be- 
lt happer.ed to be in their favour; he relied iikewife oa 
ant of fuflicient evidence on the part of the plaintiffs, to 

the acquiefcence of Fowler in the award, or even lus 
ledge what the award was; and indeed the only evidence 
it purpofe was his applying to the arbitrators before the 
i was finally made, to let him have part of the wine to 
on his trade with (which the arbitrators would not com- 
itJi), and his agreement afterwards with Hamilton to have 
ines depofitea* in the hands of Hayward^ but no evidence 
*e whs prclcnt when the award was made, nor any other 
;cc that he was informed of the contents of it. * 
"d Chancellor: A bill to carry an award into execution a bill will n* 

there is no acquiefcence in it by the parties to the fub- llc to carry m 
n, or agreement by them afterwards to have it executed, a * ardll, J* CJ ^- 
I certainly not he (1 ); but the remedy to inforce a perform- pamototh* 
of the award muft be taken at law: It has been faid the Mirjifconiionot 
ice here of Fcnuler's agreement to the award after it was nor^rce 'aftet- 
, was not fuTlicicnt to found a decree on; but what he «rar<L co hive <c 
pally relied on was, that no ie of the plaintitEs, the ex " cu ^ ^ 
3ts, were parties to tac iubm.ihon, nor did it appear that a:iaw. 
rtrc fo much as privy at all to the tranfattion ; and there- 
See Nsrhn v M*fcail. 2 Cha. Rep- Jl:r y I Ea. Al. 51.2 Fern. 444. S. C» 

%rm. 24. s.c. Eijhof v. ;rd- 

fore, 

3 . 



e 



*j gtoftttt aim atbftrement. 

/ 
TKoMrsoK r. f orc> as ^y werc unc icr no obligation of abiding by the iwatrj, 

• ° ' t'ey ought not to have the benefit of it; and in reading over 

tie award (which, at the time of making it, was taken down 
in writing), he obferved it was calculated only for the indem- 
nity of Hamilton againft the failure of Fowler , without any re- 
gard had at all to the creditors, there being no provifion made, 
that the wines fhould be Ibid, or otherwife employed for raif- 
ing money for the payment of debts of the plaintiffs: that 
though an agreement made between the two partners, and 
particular creditors, to appropriate a particular part of the 
partnerfhip efle&s for the payment of thofe creditors, might 
create a lien on thofe goods fpecifically for the payment of 
their debts, in preference to the reft of the creditors; yet an 
agreement of that kind between the partners only, would cer- 1 
tainly not difable any of the creditors from purfuing their re- 
medy at law againft the edicts of the debtor, any more thaft. 
if no fuch agreement had been made. 
The bill difmiflcd. 



(B) For what Caufesfet afide. 
June the i8th, 1737. Upon Appeal from the Rolls* 

Mary Mcdcalfe Widow, and William Ivcs 9 

«, . «i_ JVWiatn Ives and Ann his Wife bv crofs Bill. Plaintiffs.. 

J*ve the loth, - 7 

1757. Mary Medcalfe and Richard Johnfen and Wife Defendants* 

Cafe 21. 'T^ H E bill in this cafe was brought to have a fpecifick pcr> 
« o . . rr A formance of articles made on the marriage of the defen-* 
ner 9 Mifpi! 19" ^ ant Richard Johnfon, whereby the faid defendant and his wife ( l) 
xVef. .11. covenanted, in confideration of locol. the wife's marriage por- 

* ttvcfMntfn arcf C t * on, to re ' ea ^ c a ^ tne r, g nt anc * "itercft that might accrue to 
cic$ C before mar- them out of her father's perfonal eftate, by the cuftom of the 
wage, in con- city of London, he being a freeman, and alio to fet afide an 
»ooo/! the wife's awarc * aUedged to have been unduly obtained upon a fubmif- 
portion, to «- fion of the controverfies between the parties, concerning the } 
Jhf* a ? 1 ^ ieright "g nt to this orphanage part. * 

to them outo™ As t0 the firft part of the cafe, the defence made for the de- j 
her father's per- fend ant was, that the cuftomary part being a mere poflibility, ^ 
£ nal uft **' f by anc * contm g enc y> which might or might not happen, it could 
Lento, not be releafed, and if it could, that, at the time of the arti- 

f* /?>zt«J*t6£c***^ c * es > the wife was an infant, and fo not bound by them; be- - 

yr **Cu<f ^ K * es t ' iat ^ lc 2000 ' # was no confideration for relea/ing fuch 

/• v^T J an ^ ntere ^' th e wife's father, one RuJM, having died worth 

# — - — -' - ' jupwards of 20,000/. 

&*vJf<++*' *-s/Z* tJ ™ t * Lord Chancellor : Though hardfhips may happen on my de> 
J sdf26^/ ^^termination, yet thefe are confiderations too loofe either fort 
//f~ judge at law, or in this court, to lay any weight upon; and 

(1) The articles were dated the 4th then underage. Reg. Lib* B. 1736. fJU ' 
day of February 1703, and the wife was 445. 

^ r * ImaA 



Stoatu aim 3cbfttement 6$ 

muft determine according to the fa&s, by the rules of law, * vf s *• 
nd of this court: in this cafe there appeared to be a valuable * pc * lF,# 
onfidcration for the agreement in the articles, becaufe, at th« .^^Y^-^^y 
ime the 2000 /. was given, the defendant's wife was intitled / f& ** **y &± 

no part of the eftate of her father, ' and it was given for her 
dvancement in the world, and it is highly reafonable that 

ach kind of articles fhould be carried into execution, and that L "4 J 
rhen a father is bountiful to his children in his life-time, that 
ic (hould have his affairs fettled to his own fatisfa&ion. 

As to the objection of the cuftomary part being a poffibi- The huiband Is 
ity, and merely in contingency, it is of no weight, for there v«an^and\h£ 
is no doubt but it might be releafed in equity ( 1 ) ; but here it is a the wife was un- 
corcnant which the defendant is bound by in all events, and derage*ynitii 
it is no obje&ion to fay, the wife was under age; for though I^ueVtohimto 
in this refpe&, if the hufband were dead, the articles would the right of hia 
notttnd her, and (he would by furvivorihip be intitled to the ^^"^a* 
cuftomary lliare, as a chofe in aftion not recovered, or re- his reieafc wiU 
ceived by the hufband ; yet he being alive, it is a matter that to* ber. 
accrues to him in right of his wife, and he may releafe it, and 
his releafe will bind her ; and therefore it was reafonable he 
ftould perform his covenant (2). I found my opinion too on an 
old law well known in the city by the name of Juifs law, 
whereby a hufband was authorised to agree with the father 
for the wife, though (lie was under age ( 3 ). 

Upon this another queftion arofe, whether the orphanage The hu&and't 
lore, fotobe releafed by the defendant, (hould fall into the £££"{£* f. 
bd" man's part, and go wholly according to his difpofition tinguiihment of 
iftherefidue of his eftate, as a thing purchafed by him; or, the wife's right 
rhcther it fhould fall into his perfonal eftate, and be diftri- J^^dtf^T 
Wed with it according to thecuftom? And at firft I inclin- leaves the eftate 

1 to think that it was in the nature of a purchafe by the fa- ?/. dl 5A ther M 
ler, and fo wholly in his power to make a difpofition of it &cn charged^* 
r his will'; but, upon hearing the Attorney-general to this and therefore 
tatter, I am of opinion, that as in equity things covenanted j? uft bc £° n * 
> be done, are as things actually done, it muft be confidered ofWs general 
; if the hufband had a&ually releafed, and fo is an extinguifh- perfonal eftate, 
lent of his wife's right to the orphanage part, and being an ex- ^xo^e^t!^ 
aguiihment of the right, it leaves the eftate of the father as if executor* as a 
had never been charged with it, and muft therefore be con- partof the dead 
kred as a part of his general perfonal eftate, and not to go m * n 

•holly to the executor of the father, as a part of the dead man's 
are. Cafes cited, 1 Fern. 6. 2 Vera. 665, 666^ 1 Will. 644, 

45. 2 Will. 527. (4). 

(I) So Bbmdelv. Barkis 1 P. W. 639, (3) See Hearn v. Barber, poft. 3 vol* 

46. Cox v. BeUtba, 2 P. W. 273. Lock- 213. 

*?. Savage, 2 Stra. 947. Sccus if a (4) So Pujey v. Defiouverie, 3 P. W* 

■we vohmtaty releafe. Morris V. Bur* 320. Morris v. Burroughs, poft, 403. poft. 

*fbs,fcf. 399. 2 vol.' 629. S. C. Read v. Snell, poft. % 

I*) Bt*ndeiv. Barker, I P. W. 640. vol. 644. Hall v. Lumley & other cafes 

mrbv* Bwrmgbs, poft. 402. cited, in Tomkjns v. ladbroh, 2 Vef. 592. 

[T*.Ii P As 



«4 



IVII T. 

MsDCALFS* 

Where arbitra- 
tors are deceived* 
or where they 
make their award 
clandestinely, 
without hearing 
each party, a 
court of juftice 
will interpofe, 
and avoid fuch 
U3). 



C«5] 

Though a hill in 
Chancery cannot 
be received in 
evidence at law, 
yet in this court 
it may be read, 
and has been of- 
ten allowed aa 
evidence. 



Styart anti atftfttemettt' 

As to the award, he decreed that it ought to be fet afide, h 
refpeft that the articles were fliewn only to one of the arbitr* 
tors, and not to both, and he to whom they were not flicwc 
fwore, that if he had feen them, he believed he (hould not have 
made fuch award : His Lordfliip held therefore, that it was un- 
fairly obtained, but agreed to the general rules in cafes of awards 
that the arbitrators arc judges of the parties own chufing (i) 
and that . therefore they cannot obje& againft the award as ai 
unreafonable judgment, or as a judgment againft law ; but where 
as in the prefent cafe, arbitrators are deceived, or where the 
make their award clandeftinely, without hearing each party, ii 
fuch cafes a court of juftice ought to interpofe to fruftratean 
avoid fuch awards (a). 

In this cafe the plaintiff's bill was offered to be read as ev 
dence for the defendant, and being objefted againft, it ws 
faid, per Lord Chancellor : at law, the rule of evidence is, th: 
a bill in chancery ought not to be received in evidence, for 
is taken to be the fuggeftions of counfel only ; but in this con 
it has been often allowed, and the bill was read. 

His Lordihip reverfed the order of difmiflion, and declan 
that by the articles of the 4th of February 1703, the defends 
John/on is to be confidered in equity, as barred of any coffer 
ary (hare in right of his wife, or otherwife, of the perfbc 
eftate of the teftator William Rujfell (4). 



(0 Tittenfon v. Peat, po/l. 3 vol. 529. 

(2) Vide Corneforth v. Gecr, 2 Vern. 
705. Ridout v. Pain, p>ft-l vol. 494. 1 Vef. 
II. S. C. Tittenfon v. Peat, pofi. 3W. 
529. Awn. ibid. 644; Chilcot v. Lequefne, 
% Vef. 315. Knox v. Symmonds, 3 Bro. 
Cha. Rep. 360. Kampjhlre v. Toing, 
pqfi m 2 vol. 155. note. 1. 

(3) ^ appearing that Mr. Elleker, the 
arbitrator, nominated on the part of the 



plaintiff* and Mrs. Meteedfe % was o 
informed of the contents and e&eft 
the faid articles, and both bills now. 
hearing, praying to fet afide the ft 
award and rekafes, it was ordered 11 
decreed, that the faid award and reJea/ 
executed in furfuance thereof, be fet afid 
Reg. Lib. B. 1736. fol. 447. See N*gi 
v. Ponder, Nelf. Cha. Rep. 6. 
(4) Reg. Lib. B. 1736. fol. 447. 



CAP. XV. 

bankrupt 

(A) Concerning the Commijfton and CommifftonerSm 

(B) Rule as to the Certificate. 

(C) Rule as to AJlgnees. 

{D) Joint andfeparate Commijfton* 

(E) Rule as to his Executor, or where he is one himfelf. 

(F) Rule as to Landlords. 

(G) Rule as to Compofttiotu 
(H) Rule as to Creditors m 
(I) Contingent Debts. 

(K) Rule as to Drawers and Indorfers of Bills of JSxa 
(L) Where AJfigmes will be charged with Interefi. 



M) Rule as H Partner/hip. 

^)Ruleasto€ofts. 

[0) The C*nftru8ion of the Repeating Claufe in the Tenth of Queen 

Anne. 
(P) Rule as to Dividends. 
(QJ Commiffion fuperfeded. 

(R) Rule as to Bankrupt's Attendance on Affignees. 
(S) Rule as to an Apprentice under a Commiffion of Bankruptcy. 
(T) Rule as to difcounting of Notes. 
(V) Rule as to a Petitioning Creditor. 
(IT) Rule as to Notes where Interejl is not expreffed. 
(W) The ConfiruEtion of the Statute of the 21 Jac. I. c. 1 9. with 

Refpeft to a Bankrupt's Pojfeffton of Goods after Alignment. 
(X) Rule as to Copyholds under Commiffion s of Bankrupts. 
(Y) Where AJJignees are liable to the fame Equity with the Bankrupt [ {5 j 

himfelf. 
(Z) What is or is not ah Ail of Bankruptcy* 
(hi) Rule as to Sales before Commiffioners . 
(Bb) Rule as Jo Examinations taken before Commijfioners. 
(Cc) Who are liable to Bankruptcy. 
(DdJ Rule as to his Allowance. 
(Ec) Rule as to Solicitors in Bankrupt Cafes. 
(Ff ) Rule as to the Sale of Offices under Commifftons of Bankruptcy. 
[Gg) What Jball or Jball not befaUto be a Bankrupt's EJlate. 
'Hh) Where there is a Trufl for a Bankrupt's Wife. 
fi) What is a Trading to make a Alan a Bankrupt. 
Kk) Rule as to Acts of Parliament relating to Bankrupts. 
IA) What is or Is not an EleElion to abide under a Commiffion. 
Mm) Rule as to Profit utions againfl fjim for Felony in not fur* 

rendering hisnfclf. 
Nn) Rule as to Contingent Creditors in refpetl to Dividends. 
Oo) Rule as to mutual Debts and Credits. 
Pp) Whether^ during his Time of Privilege, he may be taken by 

bis Bail. 
Qjl) Rule as to a Certificate from Commijfioners to a Judge* 
'Rr) The Effecl of Acquiefcence under a Commiffion. 
|Sf) Rule as to Debts carrying Interejl under a Commiffion of 

Bankruptcy. 
Tt) Rule as to Principals and their Factors. 
Vr) Rule as to Annuities under Commifftons of Bankruptcy. 
[Uu) Rule as to taking out afecond Commiffion. 
(Ww) Rule as to an open Account under a Commiffion of Batiks 

ruptcy. 
[Xx) Rule as to Principal and Surety. 
[Yy) Rule as to the Insolvent Debtors' A3. 
(Zz) Rule as to a Bankrupt's future Effects. 
[Aaa) Rule as to a ceffio honor um. 

[Bbb) Rule as to Depofits under a Commiffion of Bankruptcy. 
[Ccc) Rule as t$ Relation under Commifftons of Bankruptcy. 
(Ddd) Rule as to an Extent of the Crown. 
(lef) Rule as to Creditors affenting or diffenting to a Certificate. 
Jff) Bankruptcy no Abatement. 

) JmJ upon a Sunday for a Contempt regular. 



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♦Eanfctupt 68 

Ex parte Sattdon* March the 19th,: 

*743- 

A Petition on behalf of creditors upon the feparate eftate Commiffionm 
of two partners, againft whom a joint commiflion is now have no power 
depending, to be admitted to prove their feparate debts under ofadmittin 8 fc - 
the joint commiflion. Lord Chancellor made an order accord- S^Te^tbtT 
ingly, upon their bearing a proportion of the expence according under a joint 
to the value of the two eftates : commiffioners, he /aid, have not a ^ mifl !£ n, f 
power of doing this without the fantlion of the court (l)« tion of the court! 

(l) See ex parte Crowder, 2 Fern. 706. Davits 373. Twi/s v. Mafley % ante 68. 
Ex parte Coot, 2 P. IV * 500. Horfey's Ex parte Bauttier, poft. 98, In the mat- 
Cafe, 3 P. W. 24. Graft v. Du Frefmy, ter of Simpjw, foft. 138. 



Ex parte Simpfon the Elder, Thomas Simp/on and John Simpfon. sfu&ft the xft, 
the Younger : In the Matter of Jofeph Browning, a Bank- X744 * 
rupt. 

TyRowning did in his own name contrail with the commit- Cafe 24. 
** Goners of the navy, to furnifli his majefty's (hips with flop Commiflioner* 
*doths, but the fame was in truft for himfelf and the petition- upon *he day for 
^ts. On the 24th of Nov. 1742, articles of agreement were ex- chufin fa ffi K«»«» 
^cuted by him and the petitioners, whereby all the parties were mine critically 
*«> have an equal part in the contrail, and the accounts were to be int0 & c de . Dt > 
JZttled, and ftgned every fix months : and in cafe any of the par- ditori^whlT" 
*3es fhould die, or be rendered unable or incapable to carry it theyfwearisdue 
pn, in his or their own right, then the (hare of fuch party dy- to *«*» M **** 
ing, or becoming incapable, (hould be vefted in the furviving ^, U nt after- 
^nd capable parties, and the executor of fuch dying or incapa- wards, 
^le parties, mould on requeft make a legal aflignment to the 
Survivors or capable parties, and they {hould give bond for the 
**alue of his (hare at the time of the fettlement of the laft half 
pearly account, which was to be conclufive to the executors or 
^dminiftrators. 

Browning being indebted on the contrail, and alfo largely 
indebted to the petitioners on their private account, made an 
aflignment dated the 21ft of January 1742, of his intercft in the 
*outra£l, to the petitioners, in the firfl place to fatisfy fuch 
font as he then owed or any time after fhould owe to the pe- 
titioners on the contrail or otherwife, and after fuch payment, 
to pay the overplus, if any, to Browning* 

In November 1743, the contrail (landing in his name, the 
commiflioners of the navy, for the fafety of the public, direil- 
*d that the petitioners {hould be made parties to the contrail, 
*od that it (hould be carried on in all their names j and the fame 
*as accordingly executed by the petitioners. 

On the 6th of Jan. 1743, the laft half yearly account touching 
,4c contrail was fettled, valued, balanced, and figned by 
imumng and the petitioners, when it appeared that the in- 
Otife of ftock'arifing from profits, from the commencement 

F3 to 



9 TBatfttui*. 

E*f*u to that day, amounted to 4642/. 3/. 4 J. and that the bank 
SmrioX' rU p t 1^ received on account of the contraA 28,526/. 16/. 
and had difburfed 28,146/. 10/. 5*/. fo that he then remained 
debtor 380/. 5/. 7*/. to the contract. 

On the nth of January 1743, Browning fettled and figned 
the petitioner's private account, when there appeared to be 
due on that account to the petitioners 4615 /. 3 x. 7 d. and by 
the 24th of Aprils the day of his bankruptcy, there was due 
to them on the feparate account 9480/* and upwards. 

After Browning's bankruptcy the Lords of the treafun 
were plcafcd to impreCs to the petitioners to enable them tc 
proceed with the contraft 20,000/. to prevent any diftrefs tc 
the feamen, whicli was to be repaid to the treafurer of the navj 
by defalcation out of their wages from time to time as the fliipj 
were paid off. 

In April laft a commiflion of bankrupt ifltied againft Brown* 
ing, and the petitioners attended at Guildhall and offered tc 
prove their debt, but the commiffioners refufed to admit them, 
infilling the 20,000/* was to be accounted for as to one fourth 
part to the bankrupt; which the petitioners informed then 
could not be done, for if credit was to be given for it on one 
fide of the account, it was a debt due to the treafurer of the 
navy on the other; fo that it made no variation therein 
however the commiffioners thought proper to poftpone the 
choice of aflignees, and therefore the application to the court is, 
that the petitioners may be admitted to prove a debt of 9480 1. am 
that the commiffioners may proceed to the choice of ajftgnees. 

Lord Chancellor: The aft of the 5th of the prefent king 
fays, €t The commiffioners (hall forthwith, after they havi 
" declared the perfon againft whom a commiflion (hall iffu 
u a bankrupt, appoint a time and place for the creditors t 
" meet, in order to chufe an affignee or aflignees of the faL 
€€ bankrupt's eftate and effe&s." 

The creditors prefent at fuch meeting are intitled to vot« 
unlefs fome material objection againft them, and the majority 
in value to determine the choice, which makes it a confiderabk 
queftion, whether creditors (hall be admitted or not. 

The application here is, that I will direft the commiflion- 
crs to proceed to the choice of aflignees : this is nothing more 
than what is their duty, and therefore fuperftuous. 

The crofs petition is, that I would poftpone the demands 
of the petitioners, and dire£t the commiffioners to chufe aflig- 
nees, without admitting the petitioners to vote ki fuch choice* 

The petitioners by their affidavit fwear to a balance. 

But the great obje&ion is, that this is not a complete ac- 
count, and therefore the whole ought to be taken, before th< 
petitioners are intitled to be admitted creditors under the con* 
miflion. 

Now as to this, the petitioners fwear that on the partnerfhij 
the bankrupt was .only a debtor for 380/. 5 /. 7 d. Whether tin 
account is ftridtly made up between them I cannot fay, but ] 

rathq 



'Bankrupt. 7a 

ft&er believe not, for it is no more than refts, or like a compu- ** t** 
tation between partners in the brewhoufe trade. Simmon. 

But then it is faid, here is a fum of 20,000/. paid by the go- 
vernment fince the making up of this account, and that this 
ought to be brought into the calculation. 

But I look upon it to be a loan only from the government, 
for it is ftated in the memorial* that whatever fum (hall be 
advanced by the government, the treafurer of the navy has it 
in his power to retain this again by way of defalcation : fo that 
this is only in che nature of an imprefs on the part of the go- 
vernment, and therefore may be laid out of the cafe 5 and if fo, 
here is a man Teady to prove a debt a certain liquidated demand 
upon a dated account. 

But fay the petitioners in the crofs petition, There art other 
Kcmts not made up, and therefore theyjhall not be allowed to prove* 

Suppofe a debt due on a bond, and an open account befides,- A creditor fey 
die creditor finally is to be admitted a creditor only for the bond > andafl 
fotoce; and yet notwithstanding it is every day's experience 2kew!fc^!u 
tbt he is admitted to prove the bond debt, but dill the com- be admitted to 
oiffioners may take the account afterwards, and the creditor {^"^4^^ 
ftaBbe imitled on a dividend to no more than what appears to miffionersmay* 
ie really due to him on the balance. ' &'M *&* the ao 

As it would be extremely hard to exclude perfons who may j^yMend he°* 
perhaps be the greated creditors, till the account is determin- fhaii be intided 
ed, which may be the work of feveral years 5 and as it may be ?> " D m <>"thaa 
**ccefTary and convenient that aflignecs (hould immediately be "bailee? ° tt 
clofen, the commiflioners therefore are not critically to exa- 
**iine into the debt, but to admit creditors upon their oath for 
^what they fwear is due to them* as they will dill be liable to 
an account afterwards. 

His Lordfiiip therefore ordered that the commiflioners 
ftould permit the petitioners to make proof of their debts, and 
Aat they fhould at prefent admit them creditors for what they 
ftould fo prove, and that they fliould proceed to the choice of 
tffignees. 



Ex parte Simpfon and others. Decern** tht 

aid, 1744. 

IN purfuance of the order of the firft of Juguft 1744, the Cafe 25. 
petitioners attended the commiflioners on the 34th of Au- a creditor in ail 
yfi lad at GuUdhall, and a depofition was prepared for the pe- ??£*££*£* 
titioner Thomas Simp/on, who offered to fwear that the fum of to be excluded 
fctoo/. and upwards was then a&ually due to him and his ^J^ 6 account 
partners; but two of the commiflioners rcfufed to adminider 'ienthechriceof 
&e oath, unlefs he would deliver up the aflignment given by affignees might 
the bankrupt, dated January a I, 1742 \ whereupon the choice ^^J^ 
of affignees was again podponed by order of the commiflioners. of the creditors! 

but Hill, if com - 
mimonert hart juft grounds to doubt the debt, they do right to admit It only a* a data. 

And on the 5th of December indant at a meeting under the 
againft Browning, for the creditors to prove their 
F 4 debt* 



7* ^BanKtupt: 

X*f#n debtg an j chufc aflignccs, the petitioners attended tftd fw 
Simmon to a j c ^ t o £ g 000 / a an( j U p War d s> d ue to them from the bai 

rupt upon balance of all accounts, and in their depofit 
waved the aflignment, and all benefits thereof; but notwi 
(landing they had fworn to their debt, two of the comn 
fioners refufed to allow it, or to permit the petitioners to v 
for affignces. 

And therefore they now pray that they may be admitted c 
ditors for their debt of 8000/. and upwards, and to vote in 
choice of aflignees of the eftate and effcGs of the faid bankru 
Lord Chancellor : The queftion is not now whether the 
titioner is to be admitted a creditor at all events for 8000/. 
whether he is to be admitted fo as to join in voting in the chc 
of aflignees ; for there are diftinctions in the a& of parliamt 
and after voting in the choice of aflignees his debt is equally 
able to be difputed before the commiflioners, or in this coi 
notwithstanding it has been fo admitted. 

And this plainly appears from the claufe in the a£ relat 
to credit, " And be it further ena&ed by the authority afc 
€€ faid, that when it fhall appear to the commiflioners, or 
cc major part of them, that there hath been mutual cr< 
u given by the bankrupt, or any other perfon, or mutual dc 
" between the bankrupt and any other perfon, at any time 
• f fore fuch perfon became bankrupt, the commiflioners, or 
tc major part of them, or the aflignees of fuch bankrupt's efl 
€€ (hall irate the account between them, and one debt may 
u fet againft another ; and what (hall appear to be due on cit 
u fide, on the balance of fuch account, and on fetting fuch dc 
" againft one another, and no more, fhall be claimed or paid 
<c either fide refpe&iveljs" 

How does the matter reft then ? There may be in the < 
of merchants, or as this is, in a matter of contrail with 
government, an open account, and if there does not appear 
the commiflioners any rt^fonable objection to the fairnefs 
the debt, the petitioners ought to be admitted, for the aflign 
may afterwards fettle the account, or it may be done in an 
verfe way. 

If it was to be taken that in all cafes of open accounts 
creditor ought to be excluded till the account is taken, the chc 
of aflignees might arife from a much minor part in value of 
creditors, or the choice of aflignees might be impended for fc 
years from the neceflity of a previous fuit in this court. 

But notwithstanding this, if commiflioners ( tho* the cred; 
has made, a pofitive oath) have juft grounds to doubt the fain 
of the debt, they do right to admit it only as a claim ( 1 ). 

As to this particular cafe, I think the petitioners ought 
be admitted to prove ; the doubt arifes upon the examinat 
before the commiflioners, and upon the affidavit of the ba 
rupt, and the great objection that there has been no acco 
taken of the profits of the partnerfhip between die petition 

{l^Ex parte W<*d, jxfi. 22*. 



tnd the bankrupt, and it is fworn pofitively by Browning that he K * *■"» 
has not been paid any thing on account of the profits, nor has it ^ iuru}K " 
c?cr been fettled between them. 

But I am of opinion this is not true 5 no ft rid minute ac- 
count has indeed been taken of profit and lofs ; the flops that 
they fend out are in the hands of agents, while fleets are abroad, 
and therefore no final account could be taken, srnd for this 
rtafon the articles provide, the account (hall be taken half 
yearly, and that if either of the parties become bankrupt, his 
reprefentatives (hall be intitled only to the profits of the lad half 
year's account, and the rifque muft be dedu&ed as well as all 
other charges. This therefore does not remain as to the bank- 
nipt an open account, for he is exprefsly by the articles to be 
bound by the iaft half year's account or a dated one. 

If the petitioner was not to be admitted *s a creditor it would 
W laying down a rule that every account, where there is mutual 
credit between bankrupt and creditor, muft^fry? be fettled before 
kcan be admitted to vote in the choice of affignees, and would 
kprodu&ive of very bad confequenccs. 

I do therefore order the commifliorrers to admit the petiti- See i Coofce'i 
Ws creditors for the fum of 8000 /• under the commiflion Bank. Law ji«» 
againft Browning, and that they be alfo allowed to vote in refpedt 
thereof in the choice of an affignee or affignees of the faid bank- 
mpt's eftate j but the fame is to be without prejudice to any 
ftmedy that may hereafter be taken by the affignees who {hall 
k chofen, or any of the bankrupt's creditors to controvert the 
petitioner's debt. 



1 Ex parte Parfons* Jammry the 

22d, 1746. 

TH E petitioner flates by his petition that he never car- Cafe 2<J. 
ried on the trade of a brewer, nor any other trade what- 
frever, nor did he ever feek or get his livelihood by buying ° 2 °* 
and felling of any wares, goods, or merchandizes whatfoever, T^ycd^a^n? 
as people in trade ufually do ; and being advifed he is not liable commiflion 0/ 
to all or any of the flatutes made and in force concerning bank- bankruptcy 
ttpts, by the defcription of a brewer or any other whatfoever : ™% n fr hi^ul 
therefore prayed that no commiflion of bankruptcy might be fealed l»c had been 
*gainft the petitioner, till he had an opportunity of being heard h ^ J>y «wnfd 
D T ms counfel againit the liming thereof. - 1Rg thereof. 

-. * Lad Cbantllor 

■» D5 did not approve of caveat* again ft comrtiiffions of bankruptcy from the general inconvenience, 
at they will give an opportunity to pcrfons againit whom the commiflion is to be ukeji out to nuke 
•Vwfch their effects. /^£jZl%*~** 

Mr. Parfins the father, by his codicil to his will, tixe&s /*&+*"'' X> 
Mrs. Parfons (hall carry on the trade of the brevvhoufe for the •'/■- 

\ benefit of his fon, till he arrives at his age of 21. 
The fon attained his age of 21 in Augufl 1745. 
Lord Chancellor : I ordered this attendance on the petition, 
^. becaufe I do not approve of caveats againft commilfions of 
wkropt before they iiTue 5 there have been fome few inftances, 

but 



**P** but I hope this will be the 18113 becaufe it will be a great incort* 
Wmbqmu venience in general, at it will give an opportunity to perfons, 
againft whom the commiflion is to be taken out to make away 
their effe&s. 

His Lordihip ordered, that the commiflion of bankruptcy fhould 
iffue againft the petitioner, upon the petition of William Be/chirr, 
and that the commiffioners fhould be at liberty to proceed fo far as 
to decree the petitioner a bankrupt, and to make a provifionai 
aflignment of his eftate and effe&s, to an afngnee to be appointed 
by them under the faid commiflion ; but the commiffioners are 
not to iffue any warrant of feizure againft the petitioner's effefts, 
nor to fummon him to furrender himfelf-, and further ordered, 
that the parties proceed to a trial at law in the king's bench, up- 
on the following iffue : Whether the petitioner John Parfons 9 on 
or before the 19th of January inftant, was a trader within the true 
intent and meaning of the ftatutes in force concerning bankrupts 
or any of them *> in which iffue Belchier is to be plaintiff, and the 
petitioner is to be defendant ? When, after the trial (hall be had, 
either of the parties are to be at liberty to refort back for further 
directions. 



fhvtmBer the Ex parte Thomas m 

*th» 1747. 

Cafe 27. T H E bankrupt petitioned to fuperfede the commiflion againft 

X him, becaufe the petitioning creditor's debt arofe onlj 

AaotefSraibe- from a note that had been indorfed to him; after the petitionci 

bM^Dte^tW * la< * comm ^ ttec * an a & °f bankruptcy ; but as it appeared that the 

lafarfcdafter/is note itfelf was given before any adt of bankruptcy, though indorfed 

• d*W mpxi after, Lord Chancellor thought it a debt upon which the petitioning 
l^jj^a^^t creditors might take out the commiflion (1). 

• cnoimiflkmof 
kaakrvptey againft the drawer* 

(l) Anon. 2 Wilf 135. Bittgkjv. Maddifm^ 1 Copies B. Laws 22. See Export* 
la, 1P.IT.782. 



(B) Rule as to the Certificate of a Bankrupt. 

Vide the Cafe of Twifs v. Maffey, under the Divifton, concerning 
the Gmmt/Jion and Commiffioners. 

%SP*~** Ex parte Fydell. 

Cafe 28. -|n OUR parts in five of the petitioner's creditors in Maj 
Hiecertxficateof Jf 1 740 figned the bankrupt's certificate. ^ J^ 

• 1 bMkroptbeing g ut Anthony Danfie and Jofipb Morfon, who had only claimed 
^nd?aSd-adebt of 4000/. under the commiflion, petitioned fometimc 

?oamiffion, who fu«e<k4 fraud and collofion between the bankrupt and hit ion. Ata yeettngcj 
the commiffionm to eaamine into this matter, federal new creditors came in and jrojed their d^qi 
tot at they did not join in a petition to fet afide the certiacatt as fraudulently w**^ ™* ••«*■»■ 
*rt delay )ht allowance thereof, but left the claimant t» brmg a bill if he thought proper. 

4* ^ 



OBanlitupt 74 

in December laft again ft the Chancellor's allowing the certificate, E* p*rt* 



upon fuggeftion that the bankrupt, by collufion with his fon, had 
conveyed away an eftate of 200 /. per ann. to the fon without any 
confideration. Whereupon his Lordfhip on the 22d of December 
ordered, that it (hould be referred to the commiflioners, to in* 
quire into the conveyance made by the bankrupt to Richard Fy del I 
his fon, and the consideration thereof; and likewife as to the fum 
of 3863/. mentioned in the affidavits of Anthony Danjle and Jofeph 
Marfon y and the difpofition thereof; and the bankrupt's certificate 
for his difcharge under the commiflion, was by the faid order 
referred back to the faid commiflioners, who were to certify the 
whole t6 the court with all the circumftances relating thereto ; 
afterwards the bankrupt and his fon were feverally examined be- 
fore the commiflioners concerning the matters in the order men- 
tioned, and anfwered the fame to the fatisfadion of the com- 
miflioners, who by their certificate, dated the 15th day of January 
1)41, certified to the court, that they had reviewed the bank- 
rupt's certificate, and that full four parts in five in number and 
wlue had figned the certificate. 

The petitioner therefore prays that his certificate may be al- 
lowed and confirmed. 

Mr. Fydeff, the petitioner's fon, being a member of parliament, 
(he meeting was put off till the middle of June, and two days 
before, Jofeph Morfon died ; but at the meeting feveral other per- 
fons came as creditors, who had not appeared till then, and 
proved debts of 20 /. and upwards. 

Objefted by the representative of Morfon % that as he died but 
two days before the meeting appointed by Lord Chancellor's former 
order; there was no pcrfon who had any authority to appear be- 
fore the commiflioners in fupport of the claim of 4000 /. or 10 
litigate the confideration of the bankrupt's conveyance to the fon, 
and that none of Jofeph Morfotfs relations had any perfonal notice 
of this meeting, and that as there are feveral new creditors, who 
have come in and proved their debts, the certificate already 
finned is void, as there are not now four parts in five in number 
aud value who have figned. 

Lord U:ancellor. Upon looking into the ftatute of the cth of 
the prefent king, I am of opinion, that every thing which is ne- 
ctiliry to make it a good certificate has been done in this cafe ; for 
the commiflioners are in the firft place to certify, that the bank- 
nipt has in every thing conformed himfelf to the feveral direc- 
tions required by the feveral a&s of parliament relating to bank- 
ruptcy, and arc further to certify, that four parts in five of the 
creditors in number and value, who have duly proved their debts, be- 
fore them, under this commiflion, have figned; all which has been 
fatt in this cafe, in the ufual form, fo that there is no circum- 
iuK$ to diltinguifh it from the common cafes. 

If the new creditors who proved their debts at the lad meeting 
had Joined in a petition to fet afide this certificate as fraudulent- 
ly obtained, and made out their fuggeftions, it would have been a 
Sufficient ground to fet afide the former certificate ; but as they 
fare not done it, and have acquiefced under it, it would be a great 

Vol. L F hudlhiy 



Fy»il1. 



75 



M* parte 



•Banlttupt* 

lwrdfliip upon the bankrupt, to delay him any longer, and there- 
fore I muft allow his certificate ( i) •, but at the feme time I will 
not preclude the reprefentatives of Jofeph Morfon from making a 
further inquiry by bill, if they (hall think proper, into the confider- 
ation of this conveyance of 200 /. per ann. to the fonby tlie bank* 
rupt his father, that if it fliould turn out to be a fraudulent con- 
veyance, in order to fecrete part of the father's effe&s for his 
benefit, the refidue of the eftate, after the mortgagees arc fatisfied* 
may be applied for the creditors at large, 

(l) See Ex parte WiUiatrfon, pofl. 83. 2 Fef. 249. S. C. 



November the 
4tb, 17+3. 



Bromley aud others, Creditors of Sir Stephen Evance* Plaintifls, 
Goodere, furviving Aflignee of Sir Stephen Evance, 1 T\ e ( cn clant$ 9 
and others, — J J 



r r /^\^ l ^ c 3*^ °^ December 171 1, a commifEon of bankrupt 

2 9 m V^/ ifiued againft Sir Stephen Evance who was found a bank-* 
™ U * C *faith m ra P t » anc * *"• P cr ^ ona ' eftate was affigncd to Mr. Goodere and 
fuiv.cient to pay others, to whom his real eftate was alfo conveyed ; debts to the 
a., with a large amount of £0,000/. were proved under the commiflion, and on 
w^Vto™ hmds and notc8 486o/. 13/. 6d. but intcreft was allowed by the 
ried intcreft, commiflioners only to the 31ft of December 17 if ; the plaintiffs' 
•^tc^f^th^ tt; ft ators P a,( * 3^- m l ' ic P°und towards the charges of the co»n- 
tlfykwt debu miflion : by four feveral dividends, all the creditors received 20/* 
from the time in the pound, and wheh the la ft was made, it appeared that Mr. 

2n- w« P £Jped Gib f on one of thc affi g necs had thc » in his hands 34»34 o/ - 9'* >'• 
by the commif- and in Michaelmas 1738, Mary Ward, as one of the next of kin 
fioncrs (1), but of Sir Stephen Evance t brought a bill againft Sir Cafar Child the 

£r C !Vy 5 bo :d? dU hcif * hW ° f Slr ***«»» ancl *S*™& Mf ' Gib fi»* ™<* Mr. GooitTt 

not bp vond their for an account, and the caufe in November 1 739 was heard before 

penalties. his Honor, who declared Mary Ward and Sir Cafar Chtidxvat 

z > ys y intitled to an equal fhare of the furplus; Mr. Gib/on and Mr. 

' ''/**** ' V-' Goodere the afTignces, have at different times obtained decrees in 

yr.+rj;!: } "- feveral caufes, whereby Sir Stephen Evance 3 * eftate is encreafdf 

/''.,J, ^3°> 000 ^ and upwards, and is luiKcient to pay all his debts with 

' f+,io a large furplus ; and in regard the pLuutiffV demands by law 

s (&/.*+--** J ~ carry intere/I, and no interejl lias been allowed after failure of Sir 

^T; ' j$rji2z**" Stephen > they pray by their hill, tha: thc court will direft the 

'***/-" sfy c f4%Pn\vney paid by way of contribution to be refunded* and give fuch" 

'^a^2r^ ' * direflions as they fliall think proper for the payment of ihe in- 

teicft due to the plaintiffs on their bonds and notes, and that 

what remains now in the 

the plaintiff*' benefit. 



/ 



ailignee's hands, may be retained for 



(l) Ex t arte Morris, 3 Bio. Cha. Rep. 
79. S. P. Whcr.e Lord Tburlvw declared, 
that be woulJ not have allowed intcreft, 
if it had broke in upon the bankrupt's 



allowance. See alfo ex part: Cbjmpm, 
3 Ihe. Cha. Mtp. 436. Ex parte hax&ej, 
ibid. 504. 




"Bankrupt. 75 

In February 17x1, Sir Stephen Evance** certificate was figned by Biowixy «, 
the commiffioners ; in March following he died, and the 2d of Coo ****« 
April im, the certificate was confirmed by Lord Chancellor Har- 
ccurt, 

'flic counfel for the defendant Mary Ward alledged, <c that as 
<c flic was born after the death of Sir Stephen Evance, the plaintiffs £ *j6 J 
"ought to be put to the proof of the bonds entered into by him, ^ 

u for as the tcftators and inteftates of the plaintiffs who fought re- / y *V & 4L 
u lief under the commifiion, made no other proof of their debts V ^^- / />, 
"than by their oaths, die plaintifls wall now be obliged to make^/ Jy%**r y^ 4 
u itricl legal proof. *"* *™ 

M They infilled likewife, that as Sir Stephen Evance obtained^ 
w his certificate, and had been confirmed by the Chancellory the 
" debts owing by the bankrupt antecedent were discharged, and 
* the plaintifB are not intitled to intereft on fuch debts, efpecially ^^^^V "Jc 
**the certificate was figned bytnc teftators and inteftates of the /• &*-+**p " 
"pbinnffs ; but in cafe the court (hould allow intereft to the fpe- yfS~? \ 

11 oaky, creditors, then they contended that the fame (hall not be y ~~. 

"akofe the penalties of their fecurities." ^/z^^^^^f^ 

Uri Chancellor : There are two demands in this cafe, one in /f /C^^fc^ 
™lf of all ihe creditors, to have the money paid by way of con- ^ ' 
, trihttion, refunded out of the furplus of Sir Stephen Evance** eft ate; <= ' ' 
&d the other, that the bond creditors, and all thofe whofe debts 
toned intereft, may be allowed intereft for their re fpe dive debts, 
fom the time the computation of it was flopped by the com— 
offioners. 

As to the firft, It feems admitted by die defendants, that the 

contribution money ought to be refunded out of the furplus; the 

pucipal queftion therefore is as to the demand of intereft, and I 

tfcnk that ought to be paid likewife. 

It came before me originally upon petition, and even then my 

1 apprehenfion was, that it would bear no great doubt ; but as 

pvas infifted, there was no juft foundation for the demand, and 

1 4«, if I determined it that way, my determination would have 

' ken fubjeft to no appeal, I chofe to have it come before me by 

•*j ; ofbill. 

a But before I enter into the merits of the queftion, I will take no- 
tice of fome objections that have been made, in order to lay them 
•it of the cafe. 

It has been objected, that this is not a proper queftion to come on Where Villi tre 
•f way of bill, for the court can have no more power on a billy than they brought to fetd« 
mldbave bad on a petition 9 and that therefore it ought to have been J^diton in 
*tenmned upon a petition* bankrupt cafei, 

It is true the rule of determination muft be the fame, as if it * e rule of deter- 

1 . . ^ . - . . . . . ., minatioa u the 

lad come before me by way of petition, but yet it is equally proper, &m e , at if hear* 
fait (hould come by way of bill, and bills are frequently brought »pon petition, 
1 cafes of bankruptcy for fettling the demands of creditors. 

Another objection is, That the defendants^ the reprefentatives of 
Sr Stephen Evance were not bound by the proof of the debts before tie 
pmjjffienersi but I think they are hound, unlefs they can prove 
me particular objection to the debts* 
. The 



7f 'Bankrupt. 

Bb«ml*v* The common proof before the commiflioners is the oath of 
Coonsas. ^ c cre< j; tor> w hich is binding, unlefs the bankrupt, or the other 
* Su ufo£ com- creditors objeft to it, and then it is examined, and an appeal 
■ufioaeit, un- lies from the determination of the commiflioners to the great 
J***^*** 011 feal by petition j but if no obje&ion is made in a reafonable time* 
*nt^6mc?n i«ch P ro °f b y oath is conclufive. 

ceadafive, and 

•J* bankrupt's ffpreJentativet art bound by it* 

A certificate ai- The next obje&ion was made on the part of the plaintiffs to 

lSntt*ef the ^ c ccrt ^fi catc > ^hak not being confirmed till after Sir Stephen 

ftaokrupt, EvanceV death, it is void. 

though not 

•aofirned by Lord Ckmct&r till after his death, U food, for the operative force of it arises faa 

^coolant of the creditors, and when confirmed, it has its effect from the beginning* 

Though Sir Stephen Eiance*s certificate was not confirmed bj 
Lord Harcourt, till two years after his death, yet I am of opinio] 
it is as good and valid as if confirmed in the bankrupt's life-time 
for notwithftanding the ftatute mentions only the bankrupt, ye 
it extends to his representatives. 

On the death of the king, a commiflion may be renewc< 
though the bankrupt be dead, (as it has been twice in this vex 
cafe), and if a commiffion may be renewed againft a bankrup 
who is dead, it holds much ftronger that a certificate may b 
mllowed after his death ( i ) ; but then it is faid, the allowance i 
in nature of a condition, and the condition not being performed, tb 
certificate is void. The operative force of it arifes from the con 
fent of the creditors j the reafon of allowance by the Chancelh 
is to prevent furprize, and is but a condition fubfequent if you 
make it a condition, and when the certificate is confirmed, it has 
its effeft from the beginning. 

Having laid thefe things out of the cafe, I come now to the 
mam queftion, Whether creditors for debts carrying intcrcft bv 
contract, are intitkd to have fubfequent mtercft ? and I think 
they are. 

All bankrupts are confidered in fome degree as offenders (i) f 

they are called fo in the old a&s, and all the a£ts are made to 

tnrevent their defeating and delaying their creditors, and it would 

be an extraordinary thing, that the delay of payment fhould pre. 

vent the creditors from having interelt out of an eftate able tc 

pay it, when intereft in all cafes is given for delay of payment. 

I will confider this cafe firji upon the old a£ts previous to th< 

4th and 5th of Queen Ann % and then upon that ftatute. 

Tne Aatatee/ The ftatute of Henry the 8th has been fo much altered by fub 

tt^tonUWrs an k<l ucnt a # s > ***** lt ^ oes not deferve any confideration, therefon 

tqoitabie asitti! laying that out of the cafe, I will begin with the 13 Eliz. cap. 7 

asalegaljurff* 

dicTion, and (b conftmed ever fince J and on petitions Wort the Chancellor, he proceeds aa in canfi 

hy bill, vpon the roles of equity. 

(i)See Tuaway v. Bourn, 1 Burr. 716. net, pofi. 2 vol. 528. Cooper v. CMttf 

Tro*gbtony.Gflters 9 Jmbler*6lO. 1 Burr. 31. Tudwaj v. B*rn, 2 Bun 

(a) Bx parte Capot, poft. 219. Ex 717* 
parte IdngHd* *WiL 242. Ex parti Bern- 



C7«l 



, It Is manifeft this a&4ntendcd to give the commiffioners an' B i^ 1,1T *♦ 
equitable jurifdiftion as well as a legal one* for they have full G^"**** 
power and authority to take by their difcretions fuch orddr and 
diieftion as they (hall think fit ; and that has been the eon- 
ftroftion ever fince ; and therefore when petitions have com* 
before the Chancellor, he has always proceeded upjjn-the-tmie 
rules, as he would upon caufes coming before hjttn upon bill, 
The rules of equity. 

The next direftion in the aft is, what the com mi fli oners 
fliould do in regard to the debts 5 they are direfted^ to pay i* 
every of the creditors a portion rate-like according to the quantity of his 
tr their debts. And the queftion is, What debts are here meant? 
And I am of opinion it means debts due at the time of the bank- 
ruptcy, or when the commiffion ifiued, which is the fame *, for* 
to prevent difputes about the time when he becomes a bankrupt, 
the commiffioners always find in general, that he was a bankrupt 
tt the time the commiffion iflued j but this conftruftion mud be 
confined to cafes where there is a deficiency, for it is then only 
4e creditors are to have a portion rate-like. 

The aft goes on to take notice of the furplus, which it dircfts 
ft> be paid to the bankrupt ; and it leaves full power to the cre- 
ditor to recover the refidue of his debt, in like manner and form, \ 
as he fhould and might have done before the making of this aft j 
and as before the aft he mult have brought his aftion for the pe- 
nalty, therefore he muft have done the fame after the aft, and at 
law he would have had judgment for the penalty ; and if the 
debtor had come here for relief, he would not have had it upon 
any other footing than the payment of intereft to that time. 

This (hews the furplus to be paid over to the bankrupt, is only 
the furplus after payment of the whole debts ; for it would be 
Tain to pay any other furplus, when it might have been recovered 
1 from him again by the creditors. 

,Thus it ftands upon the 1 3th of Eliz. The next is the ftatute 
of the firft of J tic. 1. cap. 15. that has not much in it, but the 
exprelfion of full fatisfaElion in the claufe which gives the bank* 
rupt the furplus and is penn'd in thefe words : That the comntjf- 
Juners Jball make payment of the overplus of the lands, &c. and goods , 
&C. if any fuch Jball be, to the bankrupt, his executors, adminiftra- 
tvrs, and affigns, and that the bankrupt, after the full fatisfaftiott 
rf the creditors, Jball have full power and authority To recover and 
receive the refidue and remainder of the debts to him owing. 

But the more material aft is the 21ft of Joe. i. cap. 19. in 
which there is the following claufe : That the commiffioners may 
examine upon oath, &c. any perfon or perfons for the finding out and 
ijcovery of the truth and certainty of the fever al debts due, and owing, 
U oil fuch creditors, as Jball feel relief under the commiffion, and that 
*U and every creditor and creditors, having fecurity for his or their 
feveral debts, by judgment, fiatute, recognizance, fpecialty with pe- 
nalty or without penalty, or other fecurity, or having no fecurity, Jhall 
flat At relieved upon any fuch judgment, die. for any more than a rats* 
\ die part of their jujl and due debts, with the other creditors of the 
J banhupty 



J* 



•Bankrupt. 



Coooxux. 



f*>] 



A certificate . 
diicbarges the 
peribn of the 
bankrupt, and 
fcu effete iubfe- 
fuentfy accrued, 
but noc the 
eJUuiothe 
bands of U* 
cfignec* 



bankrupt^ without refpcEt to aJty fuch penalty or greater fum contained 
in any fuch judgment, &c. 

This aft only meant to exclude creditors from the benefit of 
the penalty as againft creditors* and not as againft the bankrupt 
himfelf. 

But then it is faid, the praftice has been for the commiflion- 
crs to afecrtain the debts, by computing intereft only to the time 
of ifluing the commifiion, and that being the cotemporanea expo* 
Jitio, is to be relied on ( i ). 

There is no direftion in the aft for that purpofe, and it has 
been ufed only as the belt method of fettling the proportion 
among the creditors, that they might have a rate-like fatisfac* 
tion, and is founded upon the equitable power given them by 
the aft. 

But flill it has been faid, that all creditors come under the 
terms of the commifiion, which is to have intereft no farther 
than the time of ifluing the commifiion ; and if that was the rule 
of law, to be fure they muft abide by it ; but there is no foch 
rule : it is faid creditors have advantages given them by the aft, 
and therefore they muft abide by the difadvantages of it ; but 
the advantages are very trifling, for by the 13th of Eliz. eftatcs 
tail in pofletiion and copyholds were given to the creditors, and 
it is only eftates tail in remainder that are given by the aift of 
Joe. the Firft, which is a very flight advantage, and for which 
it has no where direfted that they mould lofe a fubfequent inte- 
reft, and the merely coming in to prove his debt cannot hinder 
him of it. 

I come now to confider it upon the 4th and 5th of Ann, cap* 
17. which was infilled upon as the ftrength of die cafe; and 
the material parts to be confidered are, 

Fir/t, What are made the debts ? 

Secondly, What is the operation of the certificate ? 

Thirdly, The claufc in regard to the allowance of 5 per cent? 

As to the firjty I do not find the words, Debts due before the 
time of the bankruptcy. Except in the claufc of difchargc, fo that 
they feem to be left the fame as in the former aft. 

Confider therefore the efteft of the difcharge, the certificate 
is not to operate as a difcharge of the fund before veiled in the 
affignees, but to extend only to any remedy to be taken againft 
the pcrfon of the bankrupt, or his future efrefts. It is true it 
will be a difcharge of the bankrupt not only as to debts proved, 
but alfo as to creditors who have not come in j but that is no- 
thing as to the pre lent fund, for fuch creditor who has not come 
in yet, may come in, if he has not lapfed his time, which is a 
que ft ion between the creditors fingly ; and therefore I am of opi- 
nion it was meant to difcharge the perfon of the bankrupt, and 
his eftate fubfequently accrued, and not the eftatc in the hands 
of the aflignees (2), 



(l) See ix parte Bennet, pofi. 2 *•/. 
528. As to the difference between debts 
that carry in(treft 4 and a fpecial de~ 



f*ft of goedt, fee Br*me)j v, CbiU, 

P°ft**S9- 

(z) See 1 Cotke't £. I«w, 222. 



•Bankrupt* 7 9 

To come then to the claufe which dire&s ail allowance of five B*omx.*y y. 
per cent, to the bankrupt, where the effects amount to ten Qui- Gqo*s*x. 
lings in the pound, 13 c. 

It is infiftcd, that the ten (hillings in the pound is to be com- 
puted upon the debts ftated by the commiffioners, without regard 
to the fubfequent intcreft ; and fo it is, becaufe it proceeds upon 
afupppfition of there being a deficiency of the creditors being 
paid a rateable proportion. 

But fuppofe there is a furplus, and that it does not amount to 
Sfcrcent* then I think fo much (hould be taken out of the credi- 
^tors twenty {hillings in the pound as will make it up 5 percent. [ 80 J 
Bat then it may be objected, that here is a cafe where the bank- 
nipt fhould have a furplus upon the debts as dated by the com- 
miffioners, without paying the fubfequent inter eft \ but if I am 
right in the bankrupt's being intitled to that equity, it is not the 
cafe, for then it comes again to the rateable proportion. 

But it is faid there is no detention in this cafe, and that in- 
tcrdk arifes from the detention of the debt; but the law 
prefaces a delay in the bankrupt, and therefore it is due for that 
icaioo* 

And fuppofe that from the difhculty of getting in the bank- 
rupt's effe&s, and by his eftatc's carrying intereft, there (hould 
be a furplus, it would be abfurd to fay the creditors (hould not 
kate intereft Hkewife. 

But it is obje&ed, there will be a difficulty in forming this de- 
cree, for, by this way, creditors upon fimple comrade may have 
abetter fatisfa&ion than creditors by fpecialty, for the fpecialty 
creditors cannot have more than their penalties, whereas credi- 
tors by notes carrying intcreft will have their whole intereft; 
but no objeftion arifes on that account, becaufe it is a frequent 
cafe in the difpofition of truft eftatcs. 

There is in this aft a claufe of mutual credit ; fuppofe both Where there is 
lebts carrying intereft, and the creditor comes in late, certainly ? >um e * l n cr t!|£t-, l 
4e commifllouers ought to ftop intereft on both fides at the time rupt audcredi- 
«f the bankruptcy, or compute intereft on both fides till the fet- tor, the com- 
fingthe account; for it is abfurd to fay they (hould ftop intcreft * jj^™| h ' 
«i the creditor's debt at the time of iiTuing the commiflion, and on both fides, at 
carry on intereft on the bankrupt's demand. the time of the^ 

I mention this to (hew that an equitable rule ought to be fol- c^pu^ehftereft 
owed in giving intereft in theft* cafes. on both till the 

Upon the whole therefore I declare, " That as there is a con- f *^ g *** a * - 
u Cderable refidue of Sir Stephen Evance's eftate above what has 

* been divided upon the principal of the debts, and the in- 

* tcreft of debts carrying intereft down to the time of the com- 
" niiffion, the contribution money paid by the creditors towards 

charges ought to be reimburfed .out of his eftate, and that all 

the creditors of Sir Stephen Evance by bonds, contra£ts, or 

" notes carrying intereft, are intitled to receive intereft out of 

* bis eltatc for the principal funis, which were owing at the 
tunc the commiflion ifiued, from the day of its Ifluing till 
fey receive full fatisfacUo n, before any furplus (hall be con- 
*Jtd to thereprefcntatives of Sir Stephen Evance. Let the 

Toll G "Matter 



8* TBanfcrupt* 

tnt>Mttr ▼. " Mailer therefore take an account of the* eftate of Sir Stephen. 
Cooper. « gwnee, in the hands of the aflignees, and alfo of the diitrU 
*' button money, and compute intcreft on the principal fums 
u which were due at the time of the commiffion iffuing on bonds, 
•* cpntra&s and notes carrying intereft ( I ) ; but upon the binds . 
u no inter efi beyond the penalties thereof (a) ; and upon fuch other* 1 
u contrafiks or notes carrying intcreft, the intcreft at the rat* j 
fC therein fpecified, and wherein no particular intcreft is fpeci- ] 
r jj ] <f rud, at the rate of 6 per cent, until reduced by act of parlis* ' 
fl ment to 5 per cent, and from that time at the rate of $fer j 
11 cent. 

•• I decree the efFcfts of the bankrupt remaining in the hand! 1 
u of the aflignees, to be applied in the firft place for the pari 
" ment of the debts of fuch of die creditors who have not yet 
" proved to the fatisfa&ion of the commiffioners, though not 
" difallowed by them, and (hall hereafter be allowed by the 
11 Mailer, till paid up equal with the other creditors ; and tfti 
" the next place to pay the contribution money, and then the 
" creditors by bond, contracts, or notes carrying intcreft, from, 
" the time of iffuing the commiffion, pari pajfu, till they receiv e 
" fullfatisfaa ion. 

4 * 'the Matter to take an account of what has been paid tft 
" fuch creditors by way of dividends, and what has been fi* 
" paid to be applied in the firft place to keep down the intcr^! 
" eft, and afterwards in finking the principal ; and if the reft- 
" due of Sir Stephen Evance'* perfonal cftate (hall be fufficient 
" for the purpofes aforefaid, then I decree that the remaining 
lf real eftate of Sir Stephen Evance be conveyed by the aifignecs 
u to Sir Qefar Child (Sir Stephen Evance* t heir at law) and hit 
" heirs, and if any furplus is left of the perfonal eftate after the 
" purpofes aforefaid, it is to be divided into moieties, and oifc 
" moiety to be transferred to Sir Cafar Child, and the other to 
M Mary Ward \ but if the perfonal eftate be not fufficient, 1 
n decree that a fufficient part of the real eftate be fold, and tM 
if money be applied for the purpofes aforefaid, and die furphi 
" (if any) be paid to Sir Cafar, and if any cftate remain untold, 
" that the fame be conveyed to Sir Cafar \ if no furplus vt 
" main of the eftate and efie£U of Sir Stephen Evance after deb* 
u and cofts* or if there fhall be a furplus, which (hall not b 
" equal to anfwer the allowances made to bankrupts, then I re 
i€ ferve the confederation in regard to fuch allowances till afte 
" the mailer's reports* The coirs to be paid out of the bank 
" rupts cftate (3)." 

(1) Sean where intcreft is not expreffcd (*) Re S . lib. A. 174?./'/. 192. 195 ^ 
on the body of the note. Ex parte Mar* This taufe afterwards came on upon tb 
lor t pojt. 151. Mailer's report, made in purfuance « 

(2) So Tew r. The Earl of Wintcrton, this decree, and is to be found in Rfg 
3 Br: Cha. Rep. 489, Kn^ht v. Maclean, Lib. A. \V±\.foL 573. 

ibid. 496. Fids Godfrey v. Ifrffon, po(l. J 

3 W. 517. 1 



O&mfttupt. 8x 

£x parte Tohnfon and others* J*mt»y\\m 

r J aid, 1745, 

N application to ftay the bankrupt's certificate, on the Cafe 30. 
L petition of John/on and others ; four parts in five in num- where 4 parts 
and value of the creditors had figned the certificate, and the in c in number 
ands of the petitioners were not liquidated, but depended ^2^^ 
1 a long account to be taken between the petitioners and fignedthecmi- 
bankrupt; the bankrupt fweafs pofitively that the balance ficate, the court 

,. , r A mil • l- /• j.i .• • j will not ftay it 

iking the account will be in his favour ; and the petitioners do on the petition 
venture to fwear that there will be any balance in their favour, of perfons, whofc 

demands on th* 
vpfseibte depend upon an account to be taken, and where they do not fwear to a balance is 
taw*. See now ftau 18 C* 3. tbap* 52* Jeff. 76* -£^*>& rfbrf******* 

mi Chancellor : I will not ftny the bankrupt's certificate, but ' 

ipve the petitioners leave to infpeft his books, and in taking 
Mount before the commiflioncrs of their feveral demands, [ 82 j 
theyftall hereafter appear to have a balance* they lhall have 
berty to come upon the bankrupt's eftatc for that balance ( 1 )» 

(1) See next cafe 83. 

forte JPiltiamfon 9 who prayed his certificate might be al- A&r r <*thca6sh, 

lowed, and a crofs petition for creditors who oppofedit v y Jl&z^f 1 ?*'**.^*^ 

^Chancellor i '\\T^*$ ^ s matter came before me "c a f e 31. 

VV at a former hearings I poftponedaVe2.149.pl* 
certificate, from the diflike I have to traders living in Ire- ,a « sC - 
/coming over here, and obtaining a commiffion (by way of ^J^^^ 
afion) againft themfelves, in order to get cleat of all their opted in /r#w. 
Btors; and therefore I have riven a greater latitude^ and a Where a perfim 

. / . . r 1 • t 11 times on a trade 

pnof time, more than ulual, in order to allow an opportu- in one kingdom 
f for /W^t creditors, if there were any, to fend over affidavits belonging to the 
I proper authorities to prove debts under the comotiffion ; fl^^^* 1 
as they have not (1) adopted the bankrupt ads in Ivefand t I comet orer to 
twilling they (hould have full time to apprize themfelves of *n^er,ac*n* 
i nature of thofe a£ts, and fend over proper affidavits of Scc'n out by a 
* debts. No application has been made to fuperfcdc the creditor in the 
amiffion, and even if there had been qne, it wpuld have ^ cc ^ cnh ^ 
U, becaufe if a perfon Carries on a trade in one kingdom be- be, as he has 
f^ag to the crown of Great Britain, and comes over to ano- tradcd » «*"• 
t% a commiflion may be taken out by a creditor in the place ^J^StTdebti 
be the bankrupt then happens to be, as he has traded to this here. 

tm, and contra&ed dents here- There are feveral ipftanpes 
kind, where perfons belonging to the plantatiQn? abroad, 
'which is their fole place gf rcfidence, yet happening \Q be in 
jW, have had coinmiflion9 of bankrupt taken ©yt s^ainit 
*herc (2.) 

[1) They have now by fiat. 1 1 k xi rnder v. Favgban, tyiiper 398. Ex parti 
J.r.8. ofthc iHJbtGku Smith in Came. Dicmbtr 25th, 1737. 

$ tkd T. Scdp»ick> \ Sati. 1 10. cued ibid. 402. 
imderfr*, Rajm. 375. Alex* 

Gz t ttraSt 



w..?!£!L ' muft ** determined by the ads of parliament in allowing 

WILLIAMSON. .« »r r i i * r ^ 

the certificate of a bankrupt. 
Certificatet are Certificates are matters of judgment, and I do not know that 
ma^and^** a . man ^ amtts would lie to compel an allowance; for it is difcre- 
mandamus would tionary in commiffionersjfr/?, and afterwards in the Lord Chan* 
not lie to com- cellar , and yet it ought not to be arbitrary, either in the commit 
£hlSuS^ ef fion f rs or *« Chancellor to fay, We will, or will not, allow t 
tionary in the certificate \ but they ought to be governed intirely by fairnefs 01 
/X^nd^Se fiaudulcnt bclwviour in the bankrupt. 

Lord *CbaMtl£ Then one queftion will be, Whether Williamfon has been 
artcrwvdi. guilty of fraudulent concealments to the prejudice of his cre- 
ditors. * 

And another queftion, Whether the petitioners are perfont 
qualified to be creditors under this commiffion, and to afloat or 
diffent to the bankrupt's certificate. 
Where a bank- My principal objection, when the matter of the certificate 

in fofcjJTfiga- came ^ r ^ before me > was » tne 8 reat ^afte l ^ at nas appeared ia 
ing hit certificate *figning the certificate, in lefs than three months after thecom- 
lfo thl the months m ^^ l0n ^ ucd > which I thought too precipitate as he was a trader 
roimon iffues,~is * n Ireland^ and might be prefumed to have large debts (landing 
too precipitate; out again ft him there j and it appeared alfo, upon the face of hit 
^/tr L ftopped1t" e * am i natlon > that the greatcit part of his books were then in In- 
•n this account, land \ fo that he had not made fuch a full difclofure or difco- 

C # ^3 3 VCI T? as t0 * ntrt * c h' m to n ' s certificate. 

The objection to the unfaimefs of the account is now cleared 
up \ for confidering the Jargenefs of the petitioning creditor's de- 
mand, being no lefs than 4900 /. it is much more accurately 
made up from the bankrupt's books, than is nfual in bankrupt- 
cies ; for very frequently the want of correctly keeping books* 
• is the occafion of a pertbn\s bankruptcy \ and it i9 a common 
faying in Holland, if a man fails, not that he is a bankrupt, but 
that£* kept bis boohs ill. If there had been creditors in It-elanf* 
who had complained they had no opportunity of coming in, i1 
would likewife have had weight, but there is no complain* 
of that fort, and from Augujl 1749, to this time, no fuch credi- 
tor has appeared. 

The laft queftion is, Whether the prefent petitioners are qua- 
lified to objeft to and oppofe the certificate of the bankrupt- 
.f Their firft order to prove their debts was as long ago as the 2d oi 

Augujl 1749, and the certificate was flayed in the mean timCi 
and alfo the dividend •, not one of the petitioners but Sharp mack 
an affidavit of a debt at the time of the application, for the other** 
had not verified their debts upon affidavit ; and therefore, as thej 
did not lay a foundation for it, I could not make an order, thai 
they (hould go before the commiflTioners to prove their elects, Urt 
I purpofely flayed the certificate to give them time to make on* 
their debts in proof. 

Sharp when he came before the commiflioners only claimed, ani 
although he called himfelf a judgment creditor, did not fo much* 
produce a copy of die judgment on which he had the bankrupt ill 
execution, and if he had, it would not have done, unlefs he h*4< 

likewife 



'Bankrupt s s 

Ekewrife by oath verified his debt; nor ought he to have been«ad- ** fam 
muted a creditor even then, unlefs he would have difcharged him WxtL1AM,olf - 
from the execution, for he mult not come under the commiflion, 
tnd profecute the bankrupt at law likewife. 

No other of the petitioners have fo <much as claimed before Unlefs a perfoji 
the commiflioners, and unlefs a perfon proves, or (hews a rea- P* ^** * debt » 
fonable ground for a claim, they are not within the rule for af- f^able^gnwnd 
fentillg or diflenting ( 1 ). for a claim, he 

I cannot lock up certificates for ever, and deprive a man of his "J 10 * w **j n ?*• 
liberty, which the law has given him, after a full time has been or denting *?• 
allowed for iniquiry, and a full time alfo for creditors coming certificate. 
from Ireland^ or fending affidavits over (2). 

Nothing fraudulent comes out upon the inquiry, and no debt 
hasbeen proved iu a year and a half s time. 

Therefore the certificate mud be allowed, and ordered ac- r o. -i 
wriingly. . 

N. B. It has been objefted by the petitioner's counfel, that Th* allowance 
the allowing the certificate will preclude them from pro- c^^a^-Ji* 
cceding againft the bankrupt's fureties, in the feveral fecu- not difcharge hit 

. rities now in their hands, and therefore there ought to be furetic «i butthey 
a faving to them of their right, notwithstanding tlic certifi- eTiaTnfi^nou" 

Cate is allowed* withftanding 

fnch allowance* 

Lord Chancellor faid, There was no occafion for fuch a re- 
Jritlion, for the allowing the certificate of the bankrupt will 
not difcharge his fureties. 

(l) Ex parte Jobnfon y ante 8l. (2) See Ex parte Fydel, ante 72. 



An0n - Dicmber the 

aift, 1753. 

AN application by a perfon who is a creditor of a bankrupt, ***** 3?" 
that he may be admitted to prove his debt before the com- ty^lt^tm to 
■uilioners, and to (lay the bankrupt's certificate, and to be at ftay the bank- 
Hfcrty to aflcnt or diflent thereto. Thec^n^ffion 

The commiflion was taken out but the 10th of Sept* laft, and wa« taken out the 
4c certificate figned the 30th of Nov. following. * iothofSept.and 

t Lord Chancellor : I difapprove extremely of commiflioners be- fon^^ioth 
■gfo precipitate in (igning certificates. of Nor . follow- 

This appears to me to be what is commonly called a clearing in 5: 
«wnmiflion ; for the affignees are very near relations of the) tate proceeding it 

bankrupt. contrary to the 

Such hafty proceedings invert the very intention of the ads of "^ntionof the 

«*j* ' il- 1 ■ 1 • r e i- l ftaiutesofbank- 

pnument, which were made in favour of creditors, but are too niptcy, which 
°fen abufed for the fervice of infolvent perfons, were nude in fa- 

His Lordlhip therefore direded the certificate to be ftay- ™£ c fo^' 
d(l), abufed. 

(1) See the preceding and the following cafe. 
G 3 



84 T3anfctupt. 



?f*v*nbtr the JJx parte John de Saufmerez, Henry Brock, Matthew de Sau 
ad> ,7 *** merez : In the matter of Wiliiam Dobree a bankrupt. 

Cafe 33, ^"X N the 6th of April laft a commiffion of bankruptcy iflw 
X^ againft William Dobree, , who was declared a bankrupt, 
th* tiwaUaw- * ** c P^^ 1 ' 011 ^ 8 * anc * divers others of his creditors Kve i 
•oceoffibecer* Guernsey, and from time to time, before he became a bankraf 
tificatc might fee remitted to him fcveral large fums of money,' in order to be i 
****** veiled in the funds in England, in their names* 

Since the ifluing of the commiflion, the petitioners have difo 

vered that William Dobree did not inveft the money in the fun 

in their names, though he wrote them word from time to tin 

[ 85 ] that he had to done, and remitted to them the intercft as it b 

came due. 

The debts of the bankrupt amount to 81,009/. and the debts 
the creditors who have figned his certificate, to 22,904/. 18/. 4 
Peter Dobree, nephew of the bankrupt, proved debts under ti 
commiffion, amounting to 13,688/. 10s. io</. indifferent right 
part on his own account, part as executor of Nicholas Dobree, ps 
as guardian of Peter Dobree, another part as guardian to Raei 
Carey Dobree, another as guardian to Mary Dobree, another as a 
of the executors of Martha Carey, and another as father of Jui\ 
Dobree. 

Hechofe himfelf and two other perfons affignees, and on t 
1 8th of May laft, the very day the bankrupt finiftied his exan 
nation, the certificate is figned. Peter Dobree figned the cer 
ficate in right of other perfons, four times, having proved del 
in fo many different rights, as guardian and executor to fu 
perfons. 

There were but 12 of the creditors of Wm. Dobree, who pre 
ed their debts under the commiflion, befides Peter Dobree, a 
if he (hall be coftfidered but as one creditor, there will not be fc 
parts in five in number and value of the creditors, who have pro* 
their debts under the faid commiflion, that have figned the cei 
ficate ; the greateft part befides of the bankrupt's creditors coi 
not poffibly prove their debts at the time appointed for his 1 
examination, by rfafon that they did not know whether the n 
ney they had remitted to the bankrupt had been laid out in (ta 
in their names, or in the bankrupt's. 

In 1748, Wm. Dobree, the bankrupt, gave upon the marri; 
of his niece Mifi de Hair land to his nephew Thomas Dobree, I 00 
as a marriage portion, at a time when he was infolvent. 

The major part of the creditors who had figned the certific 
were nearly related to the bankrupt 

For thefe reafons the petitioners pray that the allowance 
the bankrupt's certificate may be flayed. 

The fecond petition, ex parte John de Saufmarez, and fc?< 
Other creditors of William Dobree, dates, that fome (hort ti 
before the commiffion iflued, Dobree forgave two of his nephc 
l#7 /• which they owed him, and transferred divers (locks 



■Banftrupt, 8 5 

tnt of 6000/. and upwards to fevcral of Ms creditors, Ex par* 
their dire&ion, in expectation of receiving favours of J "* ****"- 
cafe a commiiTion iflued ; and prays the matter of this 
night come on to be heard at the time of the former 
and that the bankrupt's certificate might be difal- 

lunfel for the petitioners infilled, that an executor and 

cannot fign a certificate. 

Chancellor as to this was of opinion, that executors might Apehbnwhohat 

that a perion who has a debt in his own right, and rifhe^di^SS 
lebt as executor, could not, as he apprehended, fign a « executor, can - 
: in two diftinct rights, for both are to be confidered «Kfign*eerti6- 
n particular debt. t^'L^fcta. 

mnfel for the petitioner like wife obferved, that till they f 86 1 " 
sver to England, they did not find out the fraud of the 
in difpofing of their ftock for his own benefit, and that 
ses never once thought proper to appoint any meeting, 
month of May till JuguJ} % fo that thefc creditors had 
unity of proving their debts, which amount to 35,900/* 
id of four parts in five in number and value, there was 
jurth part had figned the certificate. 

»y giving a fortune of 1000/. to his niece at a time Thechufrintbe 
ifolvent, he feems to be within the meaning of the 5*^«jj» the 
the 5 Geo. 2. where a bankrupt is excepted from the bankrupt i»cxt 

this ad, "who hath or (hall, for or upon marriage ceptedfromtb* 
of his children, have given, advanced or paid, above la** 1 ?*? 1 ! 
ue of one hundred pounds, unlcfs he fiiaU prove, by u?an marri^* of 
»ks fairly kept, or otherwifc upon his oath, before the »nyofhitchii. 
part of the coaimiffioners, that he had at the time fce* v 5« n c f bot * 
, over and above the value lb given, advanced or paid* tool, unlcfs he 
ing in goods, wares, debts, ready money, or other |"A Efficient c* 
ealand perfonal, fuificicnt to pay and fatisfy unto each ^j^ ^^ 
ry pcrfon, to whom he was any ways indebted, their be conftrued 
I entire debts." ^ SSfcaSiK 

torney-general for the bankrupt infifrcd, this is not than chiijH" of 
e intention of the aft of parliament, and was going to » bankrupt, 
safons, when Lord Ckancvlhr interrupted him, by faying, 
y was not ; and as it was a penal claufc, it ought to be 
ilrictiy, and confined to the children of a bankrupt, 
* extend any further. 

ttorney-gcncral then obferved upon other parts of the 
though the debts are confiderable, yet the deficiency 
z fo, for there has been a dividend already of eleven 
n the pound, and that there will be enough in the 
pay three fourths of this large fum of 8 1 ,000 /• 
ere is no objection to the reality of any creditor's debt 
gncd the certificate. 

ic greateft part of the perfons in whofe names the pe- 
"efented, have by attorney figned the bankrupt's ccrti- 
1 know nothing of this application ; and particularly 
ft % who, as appears by affidavit, is now upon a voyage 
G4 » 



8* 'Bankrupt. 

Zmfam to Newfoundland^ and that upon application to his wife, fo> 

^"jrtiilt* 1 * k* vc t0 ma ' ce her huiband a party to the petition, fhe pofiuvel*; 

refufed to give her confent ; fo that the certificate has bee: 

flayed from Augujl to this time, by falfe fuggeftioas and alle 

gations. 

2?" °!T i ^? te ^ ort * Chancellor : I (hall not go upon any particular nicetic 

onThe feme day" * n determining the queftion which has been made upon thel 

with the frank- petitions. 

rupe'j laft exa- 'f ^ c bankrupt in general feems to have behaved very fairly 

mmation, and , . . - r . & T ..... J - J 

twothirdiofthc "io at the fame time I cannot acquit him in the matter of tin 
creditors livine ftock, after receiving exprefs directions from his correfpondena 
Ino^Ksof the at Guernfey to purchafe the itock in their names, and yet taking 
certificate foyed upon him to buy it in his own, and then writing word that he 
for thefe reaf an$. had purchafed it in their names; but be this ag it will, I rauft 
I °7 J not be induced to make a precedent, which, in my appfeheii- 
fion, will be a reproach to the jufticc of this court. 

The nioft important of the bankrupt's tranfa&ions,- and the 
largeft of his debts are in Guernfcy y which, though part of the 
dominions of the crown of Great Britain, are at a great diftance 
from hence ; and yet notwitliftanding the commiflion is takee 
out in April only, the certificate is figned on the i8th of My 
after. 

Such precipitation in a matter of this kind is very improper. 
I will put the cafe that thefe creditors in Guernfey had heart 
of this bankruptcy, ftill they could not come in as creditors, til 
they had firft directed a fearch in the books of the refpe&ive com 
panies, to fee in what manner the ftock was purchafed, whethe 
in their own names, or the bankrupt's. 

TIio creditors wholiave figned the certificate, and have prove* 
debts to the amount of 22,000/. are in number eleven, but the: 
only feven of them havre figned for themfelves, and in thei 
own right, for Mr. Dobree the nephew has figned four times a 
guardian and executor, and the debts of \he Guernfey crcditoi 
are 35,000/. 

The admitting fuch a certificate as this, would be turning tb 

edge of the law againft creditors in favour of bankrupts, whic 

is not to be fuffered in a commercial country. 

Formerly the All certificates formerly were referred to the judges j but th 

judge* had the (j rcat <} ea j fxndincr this rather ^convenient, have of late take 

cognizance of , . ° . ,T r / , 

cercificites, but tne cognizance of it upon themfelves, and they mult exerctf 
being found in- this power in a difcreet and equitable manner. *** 

cSsSta** Lord Cbanc ^ ior fta y ed *c allowance of the certificate. 

taken ic to itfelf, 

/. (C) Rule as to Jflignees. 

*«<»*" ** 'in the Matter of the Earl of Litchfield and Sir Join Williams, 






&.j& 



*&» 17S7« 



ifc ?4. T OR D Litchfield aod Sir John Williams were aflignees Uj 
JL/ dcr a commiilion of bankrupt; the latter entruited 01 
Gi/rdcn, the clerk of the commiflion, to receive fome of d 
f**& 6tt ; #L*-> effects of the bankrupt's, and to pay fome of the debts and d 






i 



■Banteopt. «7 

vldends; no fraud appeared in the aflignees, "but the clerk after- *«* Litcm- 
wards failing, the queftion upon petition was, If the aflignees ^J $£ iohw 
ihouJd make up the clerk's deficiency to the creditors ? Wilsiami. , 

Lord Chancellor : The rules of equity in relation to neceffary The rule that 
aft 3 done by truftces, where truftces (hall not be accountable for ****** Aali not 
ioflcs which happen from thofe neceflary afts, hold not as to for k!ff«whidi 
pcrfons employed by the truftees, but only to the truftees happen from ne- 

thcmfelves. ceffary a* doe* 

not extend to 
their agents. 

Where aflignees under a commiflion of bankrupt, employ an r 88 1 
agent to receive money, or pay, and he abufes this confidence; if an aflignee un- 
I will not lay it down as a general rule, but at prefent I am at deracommiffioa 
alofs to diftinguifli fuch aflignees from any other truftee, who, empwTjm' 
if his agent deceive him, rejfrondeat fuperior to the cefltd que agent to receipt 
tofts ; fo in the prefent cafe, as one of the aflignees employed money, and he 
4c clerk of the commiflion, a perfon of very little credit, to Iffignw wm'bt 
pay dividends, who mifapplied and imbezzillcd the money, liable to make it 
tkis afligoee will be liable to make it good to the creditors, as l?£ loxh ?r Cr ?' 
he did not confult the body of the creditors who are his ceftui confuited the bo- 
futrufts in the appointment of this agent; for, what is the <*y ofthecredU 
chief confideration of creditors in the choice of aflignees ? Cer- ^taie!* 5" 
tainly the ability of the perfons, that they may be refponfible for the |K«V^_,. 
the fums they may receive from the bankrupt's eftate, by virtue £t^%7Z> r**& 
of their affigneeftiip ; but the negligence of one aflignee ihall not j +,'d&f, ^ 
hurt another joint aflignee, where he is not at all privy to any i6~j~?? 

private and perfonal agreement entered into by his bvothtr af- / 

fignee; but this 1 cannot properly determine now: for all the AlitheCourtcaa 
court can do in a fummary way under a commiflion of bankrupt, do m * J u »»ary 
is in tranfaftions only between the creditors and the aflignees, commiffio^of 
but cannot upon petition adjuft any demands that one aflignee bankrupt, is in 
may fct up again ft another, concerning a private agreement be- |^ c * t ^ c ^ 
tween themfelves, independent of the reft of the creditors. dicorsandaffig- 

The money imbe2zilled by the clerk of the commiflion was nc€S » Dut ™ u 
looo/. his bill of fees and difburfements delivered in by him be- detcrmi^on 11 
fore his death, was ordered to be taxed by the commiflioncrs, private agrce- 
wd the refidue to be applied towards fatisfaclion of the imbcz- J^Jj^"" 
xilment, and Sir John Williams the rcprefenrative of the tie- pendent of the 
ceafed aflignee, to pay in 700 /. or whatever the fum may be, creditor!, 
into the bank, to be added to the refidue of Cut don 's money 
after taxation, fo as together they may be fufixcient to make up 
iheimbezzilment of Gurdon. 



Anon, at the Rolls. Number the 

30th, 1739. 

THE queftion before the court, Whether, new aflignees Cafe 35. 
under a commiflion cf bankrupt upon the death or remo- s# c# ft# 5?f# , 
^1 of the former, (hall, on filing a fupplemental bill, be intitled ^44/^ 
to the benefit of the proceedings in a fuit begun irV the time ^a^^^^4.^ 
$* firit aflignees, or muft begin again by original bill. £ ^-C 







88 Tfonhtupt 

ANd*. Mafter of the Rolls : In the cafe of abatements, if you en 

When afligneei you muft revive } but in the cafe of aflignccs of bankrupt 
die* wautX- where fome die, or fome are difcharged, and others by order < 
charged, and court are put in their room, there is no privity between tl 
others arc put in bankrupt and the afiignees, or at lead but an artificial one, ai: 
€mm^*£* therefore they cannot revive ; and it would be hard, if thei 
but muft bring a have been pleadings, examinations, isfc. in a former ftiit, tli 
fuppicmentai t h c ncw tru ft ees fl 10 uld not have the benefit of them by a fui 

bill, tomtiUe . , , ».. ' J 

themfcives to pkmental bill. 

the benefit of Suppofe the Court, upon the deatli or difcharge of aflignei 

S^rfoS iQ * of bankru P t8 > ftould fay that they all muft go for nothing, an 

f •« "1 y oumu 'l begin again by original fuit, why then ail the charge 

* 9 -* and expences in the former fuit arc abfolutely thrown away 

but in the prefent method, though you cannot come againft ti 

representative of the former affignee, yet by a fupplemental 1> 

you will have the bankrupt's eftate liable at all events to anfw 

the cofts. 

J pnrcba/er pen- I will put a cafe that comes very near this, and (hews the re 

dew tot, on ffl- fonabfcnefs f my prclcnt determination. Suppofe an eftate b 

ingafuppleraen- . 7 >r • i • ** i i • « 

tari bill, is liable been in con trover fy for ao years m this court, and during t 

to all the coftt fuit it is purchafed, the purchafer, on filing his fupplemental b 

ringo* die «Id" comes into the court pro bono tst malo, and (hall be liable to 

•t'tLfuiu the cofts in the proceedings, from the beginning to the end 

the fuit. For thefe reafons his Honor was of opinion^ that i 

nemo ajftgnees fhall have the benefit of the former proceedings , in theft 

commenced by the old ajftgnees ( I ). 

(i) Vide anon % poft. 263. See alfo Hewit v. Maxtell, 2 Wilf 375* 



Dtctmhertte Primrofc v. Bromley, Executor of Mead. 

»4ib, 1739. 

Cafe 36. *T* HERE was a decree in another caufc that all creditor! 

S. C. a Vef. A as well thofe who were parties to the bill, as otherwifc 

ic2. cited. (hall come before the Mafter to prove their debts againft th 

Where an affig- eftate of Mead-, among the reft there appeared before the Maftci 

am dies before Moore, the furviving afiienec of one Barker, a bankrupt, an 

he has accounted . . , 1 1 r 1 ar _ti 1 • j • «\ 

for what he has claimed as a debt fuch money as Mead had received as joint a 
received, and fig rice witli Moore, under the commiflion againft Barker. 
nTa'rerTh?" In tIiC decd of affi g» m cnt, Moore, Mead, and another a 
creditor:. >' have a fignee of Barter, covenanted^*/- thcwfelves, their heirs, executor 
|i«n upon hi» real an J adminiflrators, to account for fuch money as they or either of the 
e/Ute. jj ja ^ recetve ^ t0 t f :e ccm miJfioners. Mead before his death got i 

* « &f6ct-+-* VCT y large funis of money from the bankrupt's eftate, and is des 

• *- infolvent. 

^ d**^***/'*-*^ ' The queftion before the Mafter was, Whether the commi 
y^J^ . J?^^fioners under this aflignment are to be confuiered as fimple co: 

*' — ' iraft creditors only ; and it came now before the court upon e 

f£ &&*-***** r ^ccptions to this part of his report. 

Q &£&£fo'&$^ Lord Chancellor: I am of opinion that the commiflione 

^ ' ought to be confidercd as fpecialty creditors, becaufe the a 

%£v> ie figuees executed a counterpart of the alignment to them, ai 




'Bankrupt. 

the agreement) being under hand and feal, makes it in the na- 
ture of a fpecialty debt -, and, as they are confidered in this light, 
though Mead is dead without any perfonal aflets, yet they may; 
come upon his real tftate. 

The words of the afligument, to account for fuch money as they Affijneei at* 
er either ofthemfhall receive^ mull be fo con ft rued, as that the a£ J^? lftce, ? n4 ^^ 
•fignees may be jointly and feverally bound, fo that they are to anfwenSToMry - ^ 
be confidered in this court as mere truftees, and each feparately for what they s 

anfwcrable only for what they receive, and it would be of dan- **** k v^ 

gcrous confluence to hold them otherwifc. I 9° J 

There was a cafe which I determined in this court, where ^ crt )}^% ' 
Actc were two perfons jointly bound in a bond, one of the reprcftnutte 
obligors died ; and to be Aire, at law, it might have been put fcail be charged 
in fait againft the furvivor, but as I thought it extremely hard, {^^J* 1 * 
I decreed the reprefentative of the co-obligor (hould be charged obligor in the 
fori paffit with the furviving obligor in the payment of the payment of the- 

Though the form in the aflignment under this commiflion of Proper to infeit 

i L °. t * r % » 1 • i • t^ 6 wordt jomth 

wnkrupt is the common and ufual one, yet I think it very pro- cr J fiver aUy in 
per that the words jointly and feverally fhould be inferted for the alignments tin* 
fcturc, for the fafety and fecurity of each refpeftive affignec. ^M^a^ 

(t) Simp/on v. Vatican, poft. t vol. 371. In the latter cafe thu point war 
Ji. 33- Bijbop v. Cb*rcb 9 z Ftf. ico. fully difcuifcd. 



Ex parte Lane. ***" *« •**• 

IT rOOfi, an alehoufe-keeper in Holiorne, became a bank- Cafe 37. 

VV rupt in the year 1729, and a commiflion being taken 
M againft him at that time, Fitchet and Kirk were duly chofen J^JjSJST 
a %nces, one the landlord, and the other the brewer to the ale- bankrupt'* 
Wc, In order to continue the trade, they put one Wadclow effeftsinapro- 
iatothe houfe, and allowed him to make ufe of the bankrupt's j^^^p)^ 
pHxU upon giving a bond for i©o/. the value fet upon them by ady-muge to 
ta appraifer under the commiflion. Wadclow was made a re- ^^J^j,*^ 
iponfibleman till the year 1738, and then abfeonded. themwUhia-" 

Lord Chancellor : Where the effects of a bankrupt are fo in- tereifc. 
confidcrable that no one creditor may think it worth while tocally £„/*.& sU**** " 
Wpon aflignecs for a dividend, yet if they negleft to make a di- **£ -Jf/^ 4 /"'^ 
'idend in a proper time, and are making a private advantage to/ V^^^J. n 
Acmfelves of the bankrupt's effetts, I (hall always charge fuch Jr+~"*^ 

%iees with intereft (1). ^fL/z^^d/ 

His Lord/hip ordered Kirk, and the executrix of Fitchet, to ac//-"*"" '#ro 
*tont in moieties t for the value of the goods , according to the 'appraife- jf~^'L,&/€~ <^ g 
n *nt y and to pay intereft for them at the rate of 4 per cent, to be**%f */^/& /• 
HHputedfirom a twelvemonth after the execution of the aJfignnunU / -*V* -jTZ^ 

0) Treves v. Tiwnfind, 1 Cttke't B. law 336. I Bro. Cba. Reff^C^^' 



&4< 



90 15anfcrupt. 



Afnl the if*, Ex parte White. 

Cafe 38. ^HE petitioner who had proved her debt under the ct 
Anaffigneecan- A miffion, petitions againft the affignees to be paid her ft 
not ftopaper- of a dividend that had been made of the bankrupt's eftnte. 
^idctdTo» ac- *° ne of the affi g nccs inOaed that he had a right to flop ; 
count of his owa mare of the dividend, becaufe fhe is indebted to him for a qu 
private debt tity of coals delivered to a third perfon, which the petitio 

owing to him • r 1 * 

Whatpcrfon. PKTOllfed to pay. 

r »Qt 1 Lord Chancellor : I will not allow an affignec who is an 

ficer of this court, and an officer of the commiffion, to ttop 
perfon's fhare in the dividend on account of his own private de 
which is owing to him from that perfon ; he has his remedy 
law, and ought not to blend his own private affairs with the co 
miffion to which he is only a truiiee ( i ). 

(1) But f.e ex parte Nociold, 1 Cooke's B. Laws 442. 

^ jfugfy the 13th, Ex parte Whitchurch. 

174*. 

Cafe -20 "\X T ^ ^ ^ ^ on ^ ^ our crcc ^ tors wcre P r ^fcnt at a meed 
r» A W *to confuler whether they (hould carry on a fuit agai 

FOft. ZIO. ] , T 111 • n i irr 6 

Creditors cann a dc ° tor t0 *" c bankrupt s eitate, they gave the aliignees a gc 
give a general ral power, by a writing figned for that purpofe, to prolec 
power to aflig- fuch fuits as they in their discretion (hould think fit. 
fufts ^or^ubnit ^° r ^ Chancellor : There is no colour to fay that creditors 
matters to arbi- der a commiffion of bankrupt, can give fuch a general aut 
tration, at their rity, by virtue of the claufe under die aft of parliament ot 
buttherem^Tbe S^ 1 * George the Second •, but affignees mult have a meeting 
a meeting otcre- creditors, upon notice given fot that purpofe in the Lcr* 
aotte' "P° n * Gazette, to confider of each particular fuit, or each panic 1 
the London 1 Ga- ca f c f° r arbitration, before they can proceed in them; : 
•ette to confider therefore I declare that the power here given by the creditors 
u/fuit P omS«" *k e affignees, is not fuch a one as is warranted by aft of par 
ibr arbitration, ment, and do order that the affignees be reftrained from brin£ 
^^i^v^^^»^any fuit for the future, till they have a proper authority from t 
f /*w&*2>** -fl -^majority of the creditors at a meeting according to the ftatute 
The affignees in this commiffion havuig refufed to make 
Commiffioners dividend, his Lordfhip ordered, they (hould attend the cor 
Jkndtobeadver- roitfioncrs at a fitting appointed for that purpofe, and that it" tl 
tiled, it' they commiffioners thought it proper for die affignees to make a d 
Jink it proper vidend, that it (hould be advertifed accordingly. 

for auignccs to ° ' 

make one. 

jugvft the ift, Ex parte Greignier. 

1744. 

Cafe 40. T^ ^ ^ application to the court was for new aflignees, up< 
The court will A a fuggeftion in the petition that the time was too ffioi 
notfrt fide the which the commiffioners had appointed for the choice of a 

eho»ce or afiig- 

»ce , beetle iome of Creditors live beyond fea, and had no opportunity cf vo'Jug. 

fignet 



'Bankrupt. 9X 

ftgnccs, Ac perfon having Keen founfl a bankrupt only on the E * **"• 
2iftof May, and the fitting for the choice of affignees was on °* ,,CNI "* 
the firft of June\ that the debts proved at the time of the ~ 
choice amounted only to 2075 /. and the petitioners living 
abroad could not, in fo fhort a time, fend over letters of at- 
torney to vote in the choice, though their demands upon the £ p2 J 
bankrupt's eftate will not be lefs than 11,000/. that the affignee 
already chofen is a hatter, and not to be fuppofed converfant in <£yjt£ \*&^J&, 
foreign affairs, in which the bankrupt's concerns chiefly lie. /.*&./$. &$, 4* 

For the petitioner, the cafe ex parte Afiderfon, 1724, was ' 

cited, which was heard by Lord Macclesfield upon petition, 
who ordered a new choice of affignees, on a fuggeftion that a 
peat number of creditors could not poffibly be prefent at the firft 
choice. 

Lord Chancellor : The words of the aft of the 5th of George 
• the Second are, a The commiflioners fhall forthwith, after 
"they have declared the perfon, againft whom the commiffion 
"Hall iflue, a bankrupt, caufe notice thereof to be given in the 
u hnion Gazette^ and (hall appoint a time and place for the 
"creditors to meet, in order to chufe an affignee or affignees of 
"the bankrupt's eftate and efFe&s." 

So that they are immediately to appoint a time and place for 
*k choice of affignees, becaufe it may be neceflary to take 
c *tof the bankrupt's eftate and effefts; and I muft not lay it 
down as a rule, that, becaufe fome of the creditors are abroad, 
*nd beyond fea, therefore I muft at all events give them an op- 
portunity of voting in the choice, and direft the creditors to pro- 
^d to a new choice. 

If this was to prevail, the choice muft be poftponed to a Affignees ought 
Peat length of time which would be direftly contrary to the ^ J^™^ - 
a & of parliament ; and therefore the true rale is, that the af- (hewn thit they 
%necs ought to be continued, unlefs the petitioners can (hew are not perfon* 
^cre is fome objection with regard to the fubftance or integrity |J£j£*" ceor 
£f the perfon who is chofen affignee •, but to do what is prayed 
**7 the petition, would be adding to the expence, by making two 
Voices of affignees inftead of one. • 

I defired that precedents might be fearched to fee if they No precedent to 

could find any cafe where it had been ordered that creditors ££*£££_ 

AHould proceed to a fecond choice, upon a fuggeftion, merely, ton to proceed 

*hat fome of them live remote from London^ or are out of Eng- toa fecond 

l*nd\ but no fuch ctfe is to be found, and befides it would be a bare"ugge°ftiow 

dangerous rule, and therefore I am of opinion that the petition that fome live 

^uft be difmifled, and the affignee continued who is already " ^f ^ arc 

c Wen. ou t ox hnglaod 

Ex parte Kerney. DtamUr the 

Vide title Arrejl. 



MtKwAdrtfcc Walker and others vtWl Burrows 

to, 1745- 

Cafe 4r. 'TT^ ^ ^ plaintiff's affignees were under a commiflion of bank 
B ' xtrSsf- A ruptcy againft the father of the defendant* who in 
termarrUgecon* i739 conveyed all hw (hop goods* fcta by bill of fale to the de- 
veyi his real cf- fendant'his fon, and in 1740 becomes a bankrupt* In the year 
S^croadmtioa ! 7 ! 8 be, after marriage, conveyed to truftees his real eftate, in 
of five (hillings confederation of five (hillings, and other valuable con ({derations, 

*M ^fide 111 " 5n tfUft ^ himfelf f ° r life » t0 his W5fc for lifCf tnCI1 t0 hlS 

ions^btruftfor eldeft fon if he furvived his father and mother, and fo to die 
fcimfelf for life, next fon, tffc. - 

Sfe^to tohU The biU brou S nt to fet a(ide the bill of fale as fraudulent, and 
eldeft fon if he that the deed of 171ft might be either fet a fide as void, or 
fiinrivedhisfe- truftees decreed to convey to aflignces under the cotnmiffion 
^^"S^'againa-B-rmw the father. 

nest fon, &c* The counfel for the plaintiff unified, that the deed of 1718 
B. aftcrmrdi wag vo ' lc j as againft creditors, being" voluntary, and after mar* 
rupt^TW* It a r i a g c > by virtue of the ftatute of the 13th of Eiiz. or if not un* 
conveyance dcr that ftatute, yet void under the a ilk of James the Fiift, 

«af ilhe cL '*• rclati,1 S t0 bankrupts. 

cUufeofthefirft Lord Chancellor: As to the firft patt of the cafe, there Is not 
of J*"** the a foundation to fet afide the aifignment of ho u (hold goods, be* 
and therefore caufe it was many months before the bankruptcy, and the con- 
craftec* decreed (ideration of the aflignmeut proved, and alio followed by thtt 

* — ff**!*" P offeflion of the fon - 

Mgnttl under Witn refpc& to the fettlcmcnt by lenfe ahd releafe in 1718, 

the commiflion made after marriage in confideration of five (hillings, and other 

againft Mm valuable confiderations, there are two points ; 

-<•/£* & r Jh A general point, which it is infilled arifes upon the 

conftru&ion of the ftatute of the 1 3th of Eliz. cap. 5. againft 

fraudulent deeds. 

Secondly, Upon the claufe in the ftatute of the 21ft of James r* 
As to the firft, That ftatute is not fufficient to prevail againft 
the fettlement. 

It has been laid all voluntary fettlements are void againft cre- 
ditors, equally the fame as they are againft fubfequent purcha* 
fers, under the ftatute of the 27th of Eliz. cap. 4. 
Veceflary to But this will not hold, for there is always a diftin&ion upon 

prove on the (b- the two ftatute* : 'tis neceflary on the 13th of Eliz. to prove at 
S EuLlh* at* ^ c ma ' t " 1 g °f die fettlement the perfon conveying was indebted 
the making of at the time, or immediately after the execution of the deed, or 
thefcttlement otherwile it would be attended with bad confequences, becaufe 
win^wa/in- tne ^ atute extends to goods and chattels, and fuch conftruclion 
•Jetted at the would defeat every provifion for children and families, though 
time of the ^e*e- t } ic father was no t indebted at the time ( 1 ). 
cuoon e Recital of the act : " For the avoiding and abolifhing of 
f< feigned, covinous, and fraudulent teftaments, gifts, grants* 
" alienations, conveyances, bonds, fuits, judgments, and cxo» 

(P Sec mnte RufeU v. Hamtrumd, 15. 

"cu&m*, 



■<&**«. 2 p'. 



•Bankrupt. 9+ 

•' cations* as well of lands and tenements as of goods and Wal*i* t. 
u chattels, which feoffments, &c. have been and are devifed, Bcum ' 
<l &Y. to the end, purpofe and intent to delay, hinder, or defraud 
"creditors and others of their juft and lawful adions, fuits, 
"debts, &?• And it is ena&ed, that all and every fcoff- 
44 ment, gift, grant, alienation, bargain, and conveyance of 
u land*, lie. which are made for any intent or purpofe before de- 
u dared and cxpreflcd, fliali be deemed and taken to be clearly 
" and utterly void, fruftrate, and of none effect." 

Upon this ftatute, there is no other defcription of the intent 
vf the conveyance, in the enoEHng claufe, but by reference only 
to the preamble y the intent before declared and exprcjfed. 

So that unleft the conveyance in 17 18 was made for that 
purpofe, it will not be void : now here is no proof Burrows the 
father was indebted at the time or foon after, fo as to colled: from 
thence the intention to be fraudulent, in order to defeat credi- 
tors; for, as Mr. Attorney General faid, if he had been indebt- 
ed at that time, it would have run on fb as to take in all fubfe- 
[ qoent creditors* 

j Where a man has died indebted, who in his life-time made a 

voluntary fettlement, upon application to this court to make it 

\ fubjed to his debts as real afl'ets, die court have always denied 

it, unlefs you (hew he was indebted at the time the conveyance 

was executed* 

But upon the ftatute of the 27th of Eliz. which relates to pur- 
chafers, there indeed a fettlement is clearly void if voluntary, V F* ^J? 5 !!?* 
that is not for a valuable confideration, and the fubfequent Ei'u^fubfcquent 
purchafcrs (hall prevail to fet afide fuch fettlement ; but this can purchafers (hall 
I only, be applied to the cafe of fubfequent purchafers, and there- JJde^f^^ 
fore a plain diftin&ion between the two ftatutes ( 1 ). mcnt that is vo- 

luntary and not 
for a valuable conli<krati*n. 

The aflignees under the commiflion Hand only in 'the place of Affiles ft in j 
Ae bankrupt, and are bound by all a&s fairly done by him, "jj^J^ ^ 
notwithftanding they gain the legal cftatc; and this proves that are bound Ly all 
aflignees of bankrupts are not confidered as purchafers of the ? a ?. flirly done 
legal eftate for a valuable confideration for every purpofe. y nu 

It has been faid, I mud at this time take the deed in 1 7 1 8 to The confiden- 
ce for a valuable confideration, becaufe exprefled to be for five tion illa d « d <>* 
fallings, and other valuable confidcTations. laiuaDie°confi- 

But the confideration of five (hillings, and other valuable con- derations, does 
Orations, does not oblige the court to hold it, at all events, to ™ ® b ^^jj? t 
I* for a valuable confideration, and can at mod only let to be for Tva/a- 
tta defendant into proof that there were other valuable con- able coniidera- 
Sderations. tion - 

And therefore as to this part of the cafe the truftces under 
the deed mud convey to the aflignees under the commiilion, 

(l) So Colville v. Parker, Cro. Joe. T*o*Jhend v. Wjndham, 2 ? r ef. 10, 11. 
15*. Jbejell v. Hammomd, ante 15. Evelyn v. Templar, Z Br: Cba. Re/>. 148. 
Mb v. Ssm/om, }oft. 3 vol. 41 2. Lord Fide OxUy v. La % poft. 625. 

for 



s$ 'Bankrupt 

WALnt v. for it Falls dirc£Hy within the claufc of the firft of James t 

»■"•••• «tf. 15.(1). 

" That if any perfon, which hereafter is or (hall be a 
•' nipt, (hall convey or procure, or caufe to be conveyed 
€< of his children, or other perfon or perfons, any n 
c< lands, C5V. or transfer his debts into other mens* nann 

f 95 3 " cc P l t ' ie ^ amc ^ a ^ ^ P urcna f C( ^> conveyed, or transfer 
" or upon marriage of any of his children, both the partk 
" ried being of the years of confent, or fome valuable cc 
" ation, it (hall be in the power and authority of the a 
<c fioners, to bargain, fell f grant, convey, demife, or otl 
*' to difpofe thereof, in as ample manner, as if the faid bs 
u had been actually feifed or poffeffed thereof." 

His Lordfhip directed the truftees of the deed of 171 8 
vey to the affignces, under the commifhon againft Burrow 
father of the defendant* 

(2) See Fryar v. Flood, I Br§. Cba. Rep. 160. 



y»fr the 3d, Drury v. Man, furviving Affignee of John/on, a Bank 

Cafe 42. **fOhnfon being pofTefled of a copyhold cftate, in Nov. 17; 
A afluuiee un- J a 'Commiffion of bankruptcy taken out againft him, ; 
4er a commiffion commiflioners by bargain and fale convey the copyhold to 
of bankruptcy, f-ndant and another, as affignees under the comniiflic 
Spyhoidw a" * &&* nc * rs wno entered and received the profits, 
purchafer, not- The plaintiff entered into ah agreement in writing, 
withftandmg Ac p Urc hafe of the copyhold, with an agent of the defendani 
two ftoca/ftw no on behalf of Man, agrees that he, as affignee, ihall, witl 
perfon can make months, by bargain and fale, convey and affure to the ] 
cawTu^of an(1 ^ IS ^ CIVS tnc co P vnol( l eftatc, and make a good title 
a copyhold. as the plaintiff's counfel fhould advife \ the plaintiff p; 
(hilling in earned, and agreed to pav, upon the conveyanc 
made, 449 A 19/. more. 

Difputes arifing between the plaintiff and defendant 
to the manner, and by what deeds the copyhold eftate fh 
conveyed to the plaintiff by defendant; it was agreed 
cafe fhould be ftated, and laid before counfel for an c 
what fort of conveyance defendant ought lawfully ar 
fafety to a purchafer to make ; the counfel was of opink 
the defendant ought to be admitted tenant of the copyhc 
afterwards to furrender the fame to the plaintiff, upor 
furrender the plaintiff was to be admitted, and that a 
ance by indenture of bargain and fale, as propofed by 
fendant, would not be proper, or a fit conveyance for 
to reft upon. 

'The bill therefore is brought for carrying the ag 
into execution, and that the defendant may be compelled 
vey, o» procure the copyhold premises tj be furrendcrec 
plaintiff. 

3 



•Bankrupt- 95 

The defendant infills that a furrender is not neceffary, for P*«ir v, 
that he had dated a cafe as to the method of conveying the copy- Mak# 
hold cftates to the Attorney General, who was of opinion, that 
there is no occafion for the affignee firft to be admitted, and 
then to furrender to the vendee, and fubmits to convey to the 
life of plaintiff and his heirs by bargain and fale, but hopes lie [ 9^ ] 
Ml not be compelled to be admitted and then to furrender to 
plaintiff, as it would be a great cxpence, and infills plaintiff 
will be fafe under fuch conveyance. 

bwd Chancellor : I am of opinion that the affignee under the 
tommiffion mud furrender the copyhold to the plaintiff, though 
it is very hard the lord fhould exalt two fin£s, but no perfon 
can make a common law conveyance of a copyhold ; it muft be 
by furrender; the commiffioners by the 13th Eliz. cap. 7. have 
no intcreft in bankrupt's lands, but only a power to convey, 
and at fir ft commiffioners made fale to the creditors, but that 
was found inconvenient ; therefore they made general afiign- 
nents to truftees to diftribute the whole. 

The queftion is, Whether the general affignee is a vendee An affignee 
within the a£k of parliament of the 1 3th Eliz. and I am of opinion JJ^t^J^^ 
he is : What would be the confequence if he was not fo ? Why, C y of a copyhold 
the affignee might continue in poffeffion for years before he eft«te»i»avci«iec 
makes a fale, and yet, by an exprefs provifion in the aft, he is £^^^4 
reftrained from receiving the profits, till he has compounded notthe purchafcr 
with the lord: if the purchafer under the affignee was confi- ^m^« affigne* 
dcred as the vendee within the ftatute, the affignee of a debt, offucheftate * 
who takes from the commiffioners, could not file for the debt •, 
therefore the affignee only can be confidered as the vendee. 

Decreed, the defendant to furrender the copyhold eftatc to the 
plaintiff { 1 ). 

Lord Chancellor recommended it to commiffioners of bankrupts Commiffioners 
for the future, to except copyholds out of the deed of affign- ^hoTds outoV 
oent of the bankrupt's cftate, becaufe it would fave the expence TSLdof Affign- 
tf two fines; for the commiffioners, where the creditors could mentoftfee 
toeet with a purchafer of the copyhold, might convey to him in Ste'bSjifc'lt 
the firft inftance ; and though there may be occafion fometimes will' fave the ex- 
for temporary alignments for the better preferving the bankrupt's P encc of *"° 
Ate, yet commiffioners are not obliged by the claufc in the ^y^r 
5th of the prefent king, relating to temporary affignments, to vcy to the pur- 
appoint an affignee of the whole eftate, becaufe the words are ^^r thereof in 

£\l j- • rP- • j- , t A • \ rr the firft inftance 

w the disjunctive, immediately to appoint one or more ajjignee or by bargain and 
$pees of the ejlate or effecls, or any part thereof. fole. 

And befides, by leaving out the copyhold eftafe of a bank- 2™ » SS? 
Wft in a temporary affignment, the creditors will run no rifque ton by leaving 

out 'copyhold cf- 
tates in a temporary affignment, for an extent of the crown will not affeft ic 

(0 And the cofts and charges in pro- charges of the furrender to be made by 
taring the defendant's admiffion in or- the defendant to the plaintiff, and of the 
fa to make fuch furrender, to be borne plaintiff's admiffion to be borne by the 
&T the defendant* bat thft colls and plaintiff. Jfcj. Lib. A. 1745. foL z$h 

VcauL H with 



$6 OBanfctupt. 

Dtvtr «. with regard to the crown, for an extent will not eflc< 
***** that in all fefpc£b it will be advifablc to omit them in fu 
aflignments. 
Several things He faid there were feveral things in the bankrupt law* 
!?J^hiS^t wantcd reformation, and whenever the legiflaturc is ap 
*fom*ian. it would be very proper they fliould remedy this 
nience with regard to copyhold eftates likewife. 

[ 97 J Grey v f Kenti/h. 

Juh the itX, Y\de title Baron and Feme t wider the Divifton y Rule as to 
lw * bility of the Wife. 

-^>n7thc4th, Ex parte Newton, and others, in the Matter of Reevcj 
*749- ruptcy. 

Cafe 4?. CT*IMB REL f an aflignec under a commifiion of 1 
Where an affig- againft Reeves, became a bankrupt himfelf afterwa 

nee becomes thereupon Newton and other creditors under Reeves's 
bankrupt, and!* f lon apply by petition to Lord Chancel/or to remove him 
figneesasweUas cou n* of his own bankruptcy, from being an aflignc 
himfelf, muft Reevcj's commiflion, and that they may be at liberty to 

ctLJmonwin t0 a nCW Ch ° ice * 

txecuting an af- Lord Chancellor granted the petition, and was of opini 
fignment to the not only Timbrel^ but his aflignec » muft join with the 
•ewaffisneet. fioners in executing au aflignment to the new afligne< 

the commiflion againft Reeves \ and the order was draw 

cordingly. 



(D) Joint and feparate Commiflion* 

After Wary Beafley v. Beafley. 

term 1736. 

Hiii. nC ° *~ "" T R D Chancellor : Where there is a joint coi 

Cafe 44. againft two partners, they muft be each found b 

and though one of them ihould die, the commiflion ma; 

( oh •, but if one of tike joint traders be dead, at the time c 

out the commiflion, it abates, and is absolutely void. 



Augujl the X4&4 Ex parte Turner. 

174a. 

Cafe 4 C T'ORJD Chancellor in this petition laid it down foi 

** ^-* that where there is a joint and feparate commiflion 

ditor under the joint commiflion may come under the I 

and aflent or diflent to the certificate of the bankrupt ui 

feparate commiflion (i). 

{I y \i*texf4r**f49dcnimnte6%. It is fame per fen. x Cooke's B. L* 
now held, that a! joint juid feparate com- Sec In the matter ofSimfifa, ptf 
miBx** cannot legally e«A agauift the 



'Bankrupt. 



9 8 



Ex parte Bandon. 
Viis under the Divjfisn, Commiflion and Comm\fllonMrs. 



March the 29th, 
»743» 



Ex parte Baudier. 

P A Separate commiflion taken out againft each of two per- 
\Jl\ fo" s w ho had traded in partnerfhip, which was ditlblvcd 
«forc their bankruptcy ; the joint creditors petition to bo ad- 
mitted to prove their joint debts undct each of their commitlions* 
Lord Chancellor: Where there is a joint commiilion taken 
•tt againft partners, feparate creditors may come in under fuch 
1 commiflion and prove their debts, and joint creditors (hall be 
fctisficd out of the joint eflate, and feparate creditors out of the 
feparate eftatc, becaufe the affignment in that cafe is of the whole 
tfbte(i). 
But where there are two perfons who have been partners, and 
t the commilTions are taken out againft them as feparate 
raden, there creditors upon the joint eitate cannot be admitted 
prove their joint debts under each commiflion, for they have 
equitable right, in cafe there fliould be any furplus of the 
of the two bankrupts, after the feparate creditors are 
tttfied (2). 

Nor do I think it proper to appoint a receiver on behalf of 
e joint creditors, to jret in the joint effects cf the bankrupt, 
t they muft proceed in the common courfe, by taking out a 
commiilion. 



December the 
23d, 1741. 

Cafe 46* 

Separate credi- 
tors may come in 
under a joint 
commiilion and 
prove theirdebts, 
but where there 
are two perlons 
who have been 
partners, and yet 
the commiftiou* 
arc taken out 
againft them as 
fcpante trader^ 
there creditor* 
upon the pint 
crtatJ, cannot 
prove their 
uebi< under each 
cummimou. 



(1) Ex parte $ audita /into 68. 

(2) See ex parte OUkmw, 1 Cooke's 
It?.'/, 290. Cut it feerns now to be 
' \ that joint creditors mny prove 

fepkrate commifiions, aod receive 
l diridead in proportion with the fepa- 



rate" creditors. E* parte Hay/ion, I Code's 
B. Laws 292. I Bro. Cba. Rep. 454.. 
S. C. Ex parte Coptlaui, I Cooke's B. 
Latvs 295. Ex parte Hzdgjon* 2 B:o. 
Cba. Rep. ^. Ex /arte Page, ibiJ. 119. 
Ex parte Flintttm, ibid, 1 20. 



Ex parte Bond and Hill. $ a *« a y ** <^~^ 

"*' 1745. ^^ 

Joint commiflion of bankruptcy was taken out againft Cafe 47-^^.^ £ 
^ Hiley and Rogers t and a feparate one againft Hiley \ the A j^ nt commif-^P- > 
krupts became jointly and feverally bound to die petitioner fionofbankrupty^r ^ 
|Arfin4oo/. and to the petitioner Hill in 300/. they prove JJawTt 1 ^ 1 ^. 
[w debts under the joint commiflion, and receive a dividend ( otti9 andafcpa- 
W 1 1/, td. and apply now to be let in as creditors upon the *tc comrnifliun 
Pirate eftatc, equally with the reft of . the. feparate creditors, in £^ on ^* 
f«der to receive a dividend there likewife. their joint *nd 

feveral bond, if 
■KiMtdcd to hare afell fcmfiaion out of both cfhttt at the fame time, but murt make his elcgita 
5« which of the eft ate* he tvill com?, in the firft plotr. Such creditor fluli h*v* Liue to look into 
t of the bankrupt's yAnt an* feparate eJUte, before. He raalici hi* vLdiu.i. 



H 2 



Lord 



9? TBanteupt. 

Bx p*rtt Zjrd Chancellor : The qucftion is, Whether a creditor upon ; 

XLL# joint and feveral bond is intitled to prove the debt under bote 
commiflions at the fame time. 

I had fome doubt the laft day of petitions, but, upon fcarct- 
ing, I find it has been determined, where there is a creditor oft. 
bond again ft two perfons jointly and feverally, and both become 
bankrupt, he is intitled to receive a fatisfaction out of the joint 
eftate, and if the joint eftate falls fhort, he is for the refidue bk 
titled to a fatisfaction out of the feparate eftate : but then tie 
court will put him to his election, and if he elects to come wi- 
der the joint eftate, he will with refpect to a fatisfaction for tht 
refidue, he poftponed to all the creditors of the feparate eftate. 

There are three cafes in which this has been determined. 

Ex parte Parminter and others, December the 24th, 1736. 

Lord Talbot, in that cafe, declared, as the two bankrupts La* 
vtngton and Paul were jointly and feverally bound, the petitioned] 
the bond creditors were not intitled to have a full fatisfactiol 
out of both at the fame time, and ordered them to make fact 
election before they received any further dividend. 

The fecond cafe on the petition of Elizabeth Abingdon am 
others, March the 29th, 1737. 

There the petitioners were creditors of both bankrupts, Kjj 
bond joint and feveral. \ 

A declaration was made in that cafe, that the petitioners wfljjj 
not intitled to a fatisfaction equally with other creditors of tfci 
joint eftate, or with other creditors of the feparate at the bad 
time, but. ordered to make an election, and if they elected m 
come upon the joint eftate, then not to come upon the fepani 
eftate, till the other creditors upon die feparate eftate had bed 
firft paid. 

The third cafe in the bankruptcy of Lomax and JJbvxrth, <ti 
the petition ex parte Batiks^ Augujl the 6th, 1740 (1). H| 
fame declaration of the court in this cafe as the former. i 

I (hall only add to my order in the prcfent, more than in m 
former cafes, that the petitioners (hall have time to look ot 
the accounts of the bankrupt's joint and feparate eftates, and W 
which would be molt beneficial for them to come upon, in tb 
firft place. 

It was objected upon the laft day of petitions, th?t this wonH 
be contrary to proceedings at law, upon a joint and feveral bond 
where the creditor may proceed againft both obligors" at tb 
fame time, till his debt is fully fatisfied, and to be furc it is fi 
at law 5 but in bankrupt cafes, this court directs an equality ti 
fatisfaction. 

Confider it on the footing of a joint eftate firft ; joint credl 
tors are intitled to a fatisfaction out of the joint eftate, befaj 
feparate creditors, but then they have no right to come upw 
the feparate eftate for the remainder of their debts, till after fi 
parate creditors are fatisfied. 

(1) /y. 10S.S. C. 

1 Wb 



OSanfctupt ico 

Wlat would be the confequence, if the petitioners (hould be Export* 
dmitted to come on both cftates at the fame time ? Why, then BohDandHlt *- 
lefc creditors would draw fo much out of the feparate eftate, as 
ould be a prejudice to other joint creditors, who have an equal 
jht to come upon the feparate eftate with themfelves, and 
• that means I {hould give die petitioners a preference to other 
:ditors, when the aft of parliament and the equity of this 
urt incline that all perfons (hould have an equal fatisfa&ion, 
d not one more than another ( 1 )• 
The petition difmifled. 

[i) Ex farte R(rj)larJfin t 3 P. W. 405. Blankcnbufcn, I Cook's B. Laws 304, 
parte Banks , f*JI. 106. Ex parti 



Ex parte Edwards. Jmmvy the 

ailb 1745. 

pHE petitioner being a creditor under a feparate commif- Cafe 48. 
I Hon againft A. and debtor to a joint commifTion againft Doubtful whe- 
and B. petitioned that the action brought by the affignees then creditor 
the debt he owed to the joint commiffion might be (laid, and commiffio?* 1 *** 
t his demand upon the feparate eftate might be allowed, as a againft A, and . 
off againft the debt he owed the joint eftate, efpecially as ^btortoajoint 
fame perfons are affignees under both commiflions. againft A. and B. 

lord Chancellor : I doubt whether this debt could be fct off can fet off the 
er the ftatute relating to mutual debts, becaufe different f^^^alj! 
"ons are concerned in one debt and in the other, and in dif- mand'againft the 
i rights ; but as the petitioner's cafe appears to be a hard one, former. -^ s^ A 

\\ refer it to the commiffioners of the bankrupts, to fee how^ £&£&- i»*w"* 
:h petitioner owed to the joint eftate, and how much was / / y^J^-^ 
ig to him from the feparate eftate, and to certify the fame' ; ""*** ' ' 
ie, and let the action brought by the affignees be flayed, and 
le mean time all further confideration referved till the com- 
ioners have certified (1). 

(1) See Lanejhrwgb v. Jones 7 1 P, IF. 326. 



(E) Rule as to bis Executor, cr where he is one him/elf. 

Ex parte Goodwin. April *• 3°*» 

1740. 

~*HE executor of a bankrupt, unlefs the commiffion againft Cafe 4Q. 
L his tcftator has been fuperfeded, cannot take out a com- Executor of a 
Son of bankrupt for a debt due to the teftator, for fuch debt bankrupt, unieft 
led in his affignees, and confequently the executor not inti- tgjri 2?hu wE. 

i at law, to be the petitioning creditor* tor be fuperfed- 

ed, cannot take 
out one fbr a debt due to the teftator. 

H3 - Where 



ioi isanltrapt 

Ex fdrtt Where a commifiion is fuperfedcd, merely becaufe there vrt 

Gooowut. a defeft in form, as to the petitioning creditor, but no mann< 

Petitioning crc- of doubfas to the aft of bankruptcy ; the cofts of the fuperfidei 

«ftjef^*?X ^ al1 ^ e allowed on b r > other wife if the aft of bankruptcy ha 

dm oni : .fwh;re been fully proved. 

a comrr.ifiion \z 

fu/erfeded msrely for a dsftft in form. 



March the 31ft, Ex parte Ellis and others, in the Matter of William Winfmn 
I742, a Bankrupt. 

Cafe co. JTflLLIAM Ellis and S/j/tjA Hodgchins arc bond creditors o 
Where aflignees ^^ ^iVi^ Hughes 9 who made his will, and appointed Thoma 
^ave poUcfled Beetenfin and William Win/more executors, who jointly prove* 
rf flf'" IV h* h" l * ie wil1 ' ^ ut B eete "f ofl died before he had poffefled any of th 
heiong^ta^the an ^- ts °f Hughes, Win/mere received part of Hughes's eflcfts, t 
bankrifpt, as ex- the amount of 300/. and afterwards a com rp if lion of bankruptc 

ecumr only, the jjp uc j a g a j n ft h; m an J l, c was f oum l a bankrupt. 
Court upon an „« ° . . ' .. . . r , Txr . >.'•«• 

application of 1 he petitioners applied themfelves to Win/more s aflignees, t 

the teifetoi's get in the effefts of Philip Hughes, that they might refpeftivel 

fa 6 zhT(ccu^i 6 bc P a?c * w ^ at ls due to them on t ' ieir bonds ; but the aflignec 
liis effect, 2 p. infilling that the petitioners ought not to receive the full fatis 
P oint * wwver, faftion out of the eflfefts, but ought to come in with the othc 
•ffigne« dull creditors of Win/more, and receive an equal dividend wit] 
a«euunt ior fo them: it is therefore prayed, that it may be referred to th 
much as thev CO mmiflioners f to inquire what fpecifick effefts of Philip Hvrht 

hi>egotinof the . • • * « t *7 i_ • . t 

teiUtor's tij,«tc f remain unrcccived, and that the lame may be got in, and tix 
petitioner* paid what is refpeftivel y due to them before an} 
djftfibution is made amongft Winfwore's creditors. « 

Lord Chancellor : I cannot rrnkc fuch order as is prayed by tke 
petition, becaufe Hughes's debts mull be paid in a courfe of ad- 
ministration, and it docs not appear to me, but there may be 
debts of a higher nature. 

But then the qucftion will be, Whether I ought to direft tltf 
aflignees to deliver over Hughes's effefts to Winfmore % who« 
though he is a lurviving executor, yet, being a bankrupt, ma^ 
not be quite fo proper a pcrfon to be traded. 

Indeed, as he afts in autre droit t being a bankrupt does no* 
take away the right of executorfhip, and therefore, ftri&ly h* 
may be the proper hand to receive it j but however, in fuch S 
cafe I ought to fecure the effefts of the teftator, and therefore 1 
will appoint a receiver, to whom the aflignees of this com m if 
fion fhall account for fo much as they have got in of Hughes'* 
tethtor's affets. 

His Lord/hip referred it to a Majler, to inquire what part * 
riiilip Hughes'/ ejftcls hath cane to the hands of WinfmoreV ay 
figncesy cr which remain unreccived by William Winfmore th 
furviving executor, and that the Majlcr Jhould appoint a receiver g 
the ejftcls of Philip Hughes the teftator which are unreceived % am 
that the ajfigneet. of VTmhnoxt do deliver over to fuch receiver^ fact 
fart of the Ujlator's effects as fhall he found to have been received t) 

them 



^Bankrupt' ioa 

them, or to be in their bands htfpecie^ and ordered^ 4hat the peticn- Ex t M * 
ert it paid their refpecJive debts and cojls of this application^ out * LW, » 
tffuch effects of Philip Hughes the tejlator, in a courfe of admini- 
f ration ( I ). 

(l) Ex parte Marjh, poft. 15 9, 159, 3 Burr. 1369. Ex parte Lech, z Bro. 
Ex fartt Lt welly* t I Code's B. Laws 179. Cha. Rep. 596. 
The rate under Howard and Jemmct 9 

' * -* <"J 

Ex parte Nutt. y ?/* ~ * y^l yJ'g <*»Z»fl the 6th, i^, 

70RD Chancellor: If a pcrfon that is a trader, makes an. q^ c (I >^/^ 
*^ other an executor, who only difpofes of the itock of his * yf!/^ 

teftator, it will not make the executor a trader, and liable to a Aa 1 eircutoW^ &f 
commiflkm of bankruptcy; and even if an executor, as "in itaS^JJ, 1 ^ 
the prefcnt cafe, is the reprefentative of a wine-cooper, and finds utor, cfao* St 
jtneceffary to buy wines to refine the (lock left by the teftator, J^ ft V?f u f ,e *» 
vviilnotmake him a trader; but here it is fworn the executrix ?hewtomi« me 
boogbt wines herfelf, am\ fold them to the cuitomers intire ; fo with and fine 
tfat it is not true, that flic only bought wines to mix and im- JjJ3J2jj|J JJ 01 

pore the teftator's. bankrupt, c*her- 

wife if he buys 
wines intire and fells them intire to hie cuftoners. . 

I am of opinion likewife, the a& of bankruptcy is plain, w be* * perTon 
hit if it had been doubtful, would not have dircttcd an iflue, 'Sn^* 
there there has been fuch a length of time as a year and a half t£keno«t,has 
face the taking out of the commiilion, and where the . pe- ^ cnd f cd h !«* 
toner lias acquiefced the whole time, furrendcred herfelf as a «d a'yewand * 
bankrupt to the commifiiOners, has been examined before them, hair fincc the 
aid, upon her own examination, llrong circumitances of bank- ^"J^J^JJJJ 
mptcy have appeared; but if flie is really no bankrupt, (lie is notdirctt an if. 
W left witliout remedy, for (he may brine an a£lion of trover fu « *> »y the 
apinftthcaffignee. ERR? 

attion at law. 

Ex parte Butler, Affiance of Richard/on. Au&l tht 3d, 

1749. 

l"it under the Divijscn, Rule as to the Sale of Offices under a Com* 
mijftoti of Bankrupt. 

(F) Rule as to Landlords. 

Anon. ^1 ^ e . ot h, — - 

I740. **£*v^ 

JORD Chancellor: A landlord may diftraln for his rent Cafe 52. ^^~' 
upon a bankrupt's goods, either before or after the affign- ^^ a bap1c ^ J*f 
"•^ under the commiffion ( 1 ) ; but if he ncgW&s to do it, and mpt % $ g<*xi> arc 

% fold by an af- 

fignec, a landlord can only eon* In for his rtntpn rst* with the ©Oki credit. 

(I) Ex para Plupu^.ptfi. *OJ% 

H 4 fuftcrs 



ioj 'Banfctupt* 

Anon, fuffers them to be fold by the aflignees, he can only come 
upon an average with the reft of the creditors ( i ). 
A mortgagee A mortgagee of a bankrupt's eftate, though he pays the 

who has paid the rcats f rcnt> t h at ; s ^ae to the bankrupt's landlord, unlefs 
"bankrupt's applies to the court for an order that he may (land in the pi 
eftate, unicfc he of the landlord, in confidcration of his paying the arrears 
ftandin^eia^d- rent > ^^ not ^ e preferred to the creditors under the cc 

lord's place, rtiali million, 

not be preferred 

to the creditor's under the commiflion. 

(l) Ex parte Dcfcbarmts, pofi. 103. Devize, I Cco&e's B. Laws 216. Br 
Ex parte Grovc 9 ibid* 104. : Ex parte v. Ball, 1 Br§. Cha. Bjp. 427. 



Marebtht 31ft, Ex parte Defcharmes. 

Cafe 53. npHE petitioner was the landlord of the bankrupt, \ 
If the landlord of X now prefers his petition to Lord Chancellor to be paid 
J bM h!Tff fuf ~ ^ c a " r, 5 :iees un der the commiflion, the rent that wss in an 
tofcll offhia ** d\ the time the commiflion was taken out, 
goods, he is not * It appeared in evidence, that the whole eflate and effe&s 
wh^erent^ut thc b^™?* wcre Puffed by the affignees, duly chofen un 
muilcome'in fro the commiflion, and fold by them feven years ago by virtue 

the common. ^ r * Murray, the counfel for the petitioner, infifted that 
being the landlord is intitled to his whole rent, and is not obli 
to come in pro rata with the reft of the creditors. 

Lord Chancellor: The landlord's demand is too ftale, 
having loft his remedy by diftrefs, as there are no goods u 
the premifles, he can now be confidered only as a common < 
ditor, and mult come in pro rata. 



April the 4th, Ex parte Plttmmcr. 

J 739- 

Cafe 54. T* ** E queftion was, Whether after a commiflion of bank 

^5^ A taken out, and the meflengcr in pofieflion, the land 

s1^*£Xkx? fll0uId diftrain the g°° ds u P on die premifles, and fo be fatis 

J^3vt*whoie rent even his intire debt, or whether he fliould come in pro rata with 

fc * r T a,r,ynmcnl r ^ft of thc creditors under the commiflion. 

<- amgnees^ifgAods Lord Chancellor : If any goods remain on the premifTes, 1 

■ are not removed, are liable to the diftrefs of the landlord, and he may dift 

them for his intire debt, even after aflignment or fale by 

aflignees, if the goods are not removed (1); and this is 

reafon, becaufe no provifion is made in the cafe of bankru 

in the ftatute, which gives the landlord a year's rent on 

ccutions, 

Aflignment hat Before aflignment the property remains in the bankr 

« retroipca fo as ( ai) <| the commiflioners have only a power) though the all 

to avoid any v . ^ r c\» *> ' . . ' ,- e ^ 1 

msfnc a^;done mentnas a retrofpedhon fo as to avoid any mefne adts done 

bythebaakrupt. the bankrupt. 



(1) See Bud fry v. Tajlor l z burn, and Baft's Rep. 600. 



'Bankrupt. 104 

The tent is here a year and a quarter, and I am of opinion •£* part* 
that the landlord is iutitlcd to diftrain the goods remaining PtWMM1 «* 
on the premiffes for his whole rent, notwithftanding the .com- 
million of bankruptcy and the proceedings thereon. There was 
a cafe before the Lords Commiflioners of the Great Seal, where 
the landlord, though he had made no diftrefe, yet was confidered 
to be wirhin the equity of the ftatute, which gives him a year's 
rent upon executions ; a commiffion of bankrupt being an ex- 
ecution in the firft inftance. 

The two following cafes were cited : Ex parte Jacques ', Dec. 
14) 1730. The landlord dijlrained, when the mejfenger under the 
tmmj^on of bankrupt was in pojpjjion before the afjftgnment : after- 
vards the afftgnecs were chofen, and petitioned Lord Chancellor 
King to have the goods rejlored, but the petition was diftnijfed. 

Ex parte Dillon, Feb. 27, 1733, ^e ajjignees of the bankrupt 
Qtre in pojjejfion, and the landlord dijlrained ; upon the application 
fftbe ajjignees to Lord Chancellor to be relieved, and the goods to 
k re-delivered, his Lord/hip confirmed the right of the landlord to di- 
ftain } and difmijfed the petition. 



Ex parte Grove (i). ' ^jfrrr/the 11th, 

*747- 

A Commiffion iffued againft A. who was a tenant of fl.'s, Q z fe r e,^&* 
and owed him twelve year's rent. B. the landlord comes ^ • ^5 

in and proves his debt under the commiffion, and the afTignecs Commiffion ^^^* 
fold the whole goods to Grove the petitioner, who lived in the owed^i^^^^ 
tenant's houfe ; the landlord, three years after proving of his rent. B. prove* ^^T 
debt, diftrains upon thofe goods, as being ftill upon the ^ c dcbt ™ der tff 

prcmiflcs. ^ ^ ^ the affignees fell 

The queftion was, Whether proving it as a debt under the the goods of a. 
commiffion, and fwearing he has no fecurity, is not a waiver of to , ^ P^tioner 

V - 1 1 1 5 , 11 t «» J who lives m ^f/t 

Jus right to the goods as a landlord r houfe. B. 3 yean 

after proving his 
to* diftrains on thofe goods as being ftill upon the premises. The vendee of the goods is intitled 
* then, and the proceedings of B» upon his replevin retrained and confined to his remedy under the 
•BttiJfion. 

Lord Chancel/or : The iffuing a commiffion againft a tenant, Notwithstanding 
*od the meffenger's pofieflion of die goods of the tenant, does * commiffion, 
»Qt hinder the landlord from diftraining for rent; for this is not ^ isi ^ jJofof-* 
h&zcujlodia legis as an execution is, and there too the law al- &on of the goods, 
lows the landlord a year's rent. m!™n£?tk? r 

The affignment of the commiffioners of the bankrupt's eftate rent> cven a f tec 
*nd effects, is only changing the property of die goods, and an affignment, 
iHnkipon the premiffes they are ftill liable. «&?££. 

flie fail that creates the difficulty is, the landlord's coming 
in under the commiffion. 

A nun who has a debt may come in and prove his debt, and 
afterwards he may bring an action at law, and the court will 

0) See at parte Divine, j Cooks'* B. Laws, 216 . and Lord BatburJTh ebfcrvat:oa» 
Nthbcafc. 

not 



io5 'Bankrupt. 

Ex pane no t absolutely ftdp him from bringing an aGion, but pnt him 
€ * 0Vl - to his election, and ercn then allow him to affent or diffent to 
the certificate. 

A landlord is confidered in a higher degree than a common 
creditor, and it would be hard to preclude him from diftraining 
where there are goods on the premifTes, and therefore he muft 
be put to his election to waive his proof, or his diftrefs. 

But tlic difficulty lies here, every cicditor is to fwear whether 

he has a fecuricy or not : if he has a fecurity and inftfts upon 

proving, he muft deliver up the fecurity for the benefit of die 

creditors at large, be they mortgages or pledges ; but this feems 

to be a new cafe, becaufe this is a legal lien which the landlord 

has, and not upon the fame footing with common fecuritics; 

and the only quettion is, Whether his proving it as a debt, and 

fwearing he has no fecurity, is not a waiver of the diftrefs ? 

A creditor, after J^rd Chanctllor dire&ed it to ftand over till the nest day of 

^IdwTJJidcta P^^ 0115 * as thinking it a doubtful cafe, and on that day fatd 

coaMumon,wi)i he was far from being clear that the landlord was barred of his 

fallowed \n diftrefs \ for there have been inftances, where a common credx- 

at Jawfof hiT tor > even z ^ tcr ' le nas received a dividend under a commiflion, 

debt, upon his has been allowed, upon refunding that dividend, to bring an 

AfUend* ** a &i° n at * aw f° r n * s ^ e ^ > an( * as a landlord's is a more favour- 
% ' able cafe than a common creditor's, he ordered it to ftand over 

again for further confideration. 

On the 8th of May % 1 747, this petition came on again, and 
his Lordfliip then declared that the vendee of the goods under 
the aflignee is intrtied to the goods, and ordered, that the pro- 
ceedings of William King y the landlord, upon the replevin 
fliould be rci trained, and confined him to his remedy under the 
commiflion. 



(G) Rub as to Ccmpofttiotis. 

Ntvemher the ZpUtTCt V. SpilUr. 

6th, 1740. 

Cafe 56. r I "^ H E plaintiff in this caufe being upon an agreement with 
A. being upon an X h' s creditors in general, for a compofition of fix (hillings 
agreement for a in the pound, the defendant, one of the creditors, would not 
g^r^of his conf cnt to it, unlefs the plaintiff would give him a bond for the 
creditors, who refidue of his debt over and above his (hare of the compofition. 
f^ttoTo? " Thc P laintiff > " m ordcr t0 extricate himfelf out of his difficult 
wlfe/a bo\i<ubr ** cs » did g lve a bond t0 -^ * n tTU ^- f° r tnc defendant. 
the rcfiUue, over 'Hie compofition money has been paid to the reft of the cxe- 
c^^ition 1 -* ditors, an( l Kkewife to the defendant, who has brought an action 
fuch a contraa, on his bond in the name of the truftee, and notice of trial is 
though not void given for the 14th inftant. 

wrdsV/die f <th ^ r * Gb**!* 1 Clarke moved for an injunction to ftay proceed* 
cf George the ings at .law, till 'the liearing of the caufe in this court* 
Sscond, feems t» Lord Chamsllor : Take the injunction upon giving judgment* 
rcafonanddefign and a releafe of errors, It being a cafe very proper to be con-. 
oithcaa, fidcrtdj for fuppofe a creditor upon a commiffion of bank- 

2 ruptcy 



'Bflnfcrupt 106 

tuptcy taken out, enters into a private agreement with the bank- s * **** T ** 
lupt to Cgn his certificate, upon his promifc or contra£t to pay «*n*# 
this creditor's whole debt, in confederation of his figning the,^^ „ ^~c-j£'*" 
certificate, there is no doubt but fuch a contract would have J. ^46^*^ ^- 
been void by the exprefs words of the ftatute ot' the 5 th of the . J&*** 

prefent King. - -*~~^ 

The queftibn is, Whether fuch an agreement as in the pre- 
fentcafe, though dearly out of the a£t of parliament, is not 
within the reafon and defign of the act, and the very mifchicf 
that is exprcfr»ly condemned by it, and endeavoured to be re- 
medied? For this is not only prejudicial to the bankrupt, but 
cajr be hurtful to die creditors in general, becaufe a pcrfon 
who lias a compofition on foot may (by entring into a contract 
to pay the whole debt to one or more obilinatc creditors, as a 
confidcration of their promifing not to appear, or not to oppofe 
the compofition) deceive the bulk of the creditors, who ima- 
gine the debts (landing out againft his citatc arc not fo nume- 
rous as in fact they are ( 1 ). 

[\^^Cbcpcrfieldv.Jttnfen % poft.^z. v. Clmf^ I P. lf r . 620. In Truman 

Smith v. B.'cmbv, and jotrs v. Barkl-y, v. Fcttcn, Co*w/>. 544. the creditor 

Dmgl. 670 Cm-p. 792. Ccchjbot v. received no benefit or dividend under the 

jfrw/, 1 Burn and EafTs Rep. 763. com million of bankruptcy againft the 

y-ckfur. v. D chire % y Dam. and Eajt's debtor, and the note there given was for 

^-> 5"i- jakf^n v - Lomas y 4 Dar*. a Iffi fum than, though in fatisfa&ion for f 

anJ£.j/J'# &£. i:,6. Tiie Cafe of Sum- what was really due. Set ex f arte Burton, 

Mfr v" BraJy 1 H. Blah. T.r:n Refi. ^.255. 
I4-. icuiraJUlj the authority of LtViis 



(H) Rule as to Creditors. 

Ex parte Banks. A *** ** 6 *» 

* 1740. 

A Joint commiflion only taken out againft two partners \ the Cafe 57. 
petitioner a bond creditor to whom the bankrupts were a bond credit* 
jointi? and fevcrally bound, he may make his elcftion to come to whom the 
ttj*n the joint, or feparate eftatc ; if upon the former, he can- ^YiSy'ind'fcVe- 
°ot come upon the latter (and fo vice verfd) for the furplus of rally bound, mar 
4e debt, till the creditors of the feparate tftate are firft fr rved. ^ ch j*f^ a 
Lord Cbancelhr founded his order upon this rcafoning, becaufe £e C jo?nto 8 r"cpa- 
thebond creditors might have brought a feparate action at law rateeftate, but 
*pinft each of them, and might have had like wife feparate ex- ^J 8 ^*^ 
^utions, but could not have levied his debt upon both the eftatcs deficiency, an* 
*t the fainx time, but only for the deficiency, where one eftatc * fter thc othcr 
*w not fufficicnt to latisfy the whole ( 1 ). CT * dlton * e 



(1) See ex / arte 2fc,v</and Hill, ante 9$. 



paid* 



io6 



bankrupt 



Copper and others verf. Pepys and others. 



AfrU the 20th, 
1741. 

Cafe 58. TTT 

Where a meeting V V 

mpcri?*iTer- t ' iem over t0 k vera * perfons, and then goes beyond fta* witfc 
tifcdjindfomcdo the greateft part of his effects, and becomes a 



I L LI AM REEVES gave notes 
fes Andrces to the amount of 4500/. 



payable to Ms- 
Andrics inilorfe* 



who arc prcfent 
have a right to 
kind thole who 
ire abfent. 

[ # *o 7 3 



bankrupt •, tl.c 
notthinkpro- indorfees come upon Reeves the drawer for the money due upon 
^ority^Value l ^ e notes > w ^°> being unable to pay them, becomes a bmkrupi 
likewife. 

•The aflignees under Reeve** commiflion (of whom two were 
note creditors) give notice purfuant to the aft of the 5th of 
George the Second, that t"ieTc would be a meeting of the credi- 
tors under Reeve's commiflion, in order to accept of a compoGtion 
from the agents of Andrces. 

Several of Reeves creditors met accordingly, and it wai 
agreed to accept 6s. in the pound for the debts due on thofc 
notes, and to execute a rcleafe to Andrees upon thofe terms ; anc 
a proper authority in writing, (igned by all the creditors prcfent 
was given to the defendants, the aflignees, to compound witl 
Andrees, who on the 5th of September, 1735, executed a releaC 
accordingly to Mofes Andrces on payment of the compofitioi 
aforefaxd. 

The plaintiffs who are creditors at large of If^illiatn Reeves, 
in lefs than four months after the iiTuing of the commiflion ci 
bankruptcy againft him, prefer a bill in chancery, to which tlic 
aflignees are made defendants, fuggefting it was a fraud in them 
to agree to this compofition, and that they confulted nothing but 
their own private intereft, as being creditors by indorfemtnt of 
fome of Andree/s notes. 

Lord Chancel/or : I do not fee iiny thing fraudulent in die con- 
duct of the aflignees, for they have done every thing which the 
act of parliament prescribes on meetings for a compofition of 
debts, and if fome of the creditors do not think proper to come, 
'tis their own fault, and thofe who are prcfent have a right to 
bind the whole, if the majority in value at the meeting are or" 
opinion to fign the compofition. 

But with refpeel to the bill itfelf, fo far as relates to the 
aflignees of Reeves, I difanprovc of it extremely, becaufe it is 
an attempt to make the court judges in what manner the eftate 
and effects of a bankrupt mould be diftributed, before the ex- 
piration of 4 months from the date of the commifiion, whereas 
the a& allows the aflignees a complete 4 months from the 
iffuing of the commiflion to make a dividend ; fo that it is abfo- 
luteiy changing the method chalked out by the aft, and ought 
to meet with the utmoft difcouragement. 

His Lord (hip therefore ordered the bill to ftand difmiffed as 
againft the aflignees of Reeves, with cofts to be taxed. 
_ . A doubt arofe, whether die creditors who had accepted s 

a D d indorfer of compoGtion of fix (hillings in the pound for their demands or 

iiorcs arc both 

become iankrupt* and the creditors have received a -Impend of 6*. under the commiflion againft th« 

indorfer, ti ey cm only prove the remaining 14s. under the coovuhTion againft the drawer. 

Jndrer/j 



♦Bankrupt 107 

Andrea y might, notwithftanding, prove their whole debt in the Coot z» t. 

commiffion againft Reeves ? At firft Lord Chancellor feemed to ****•• 

think they might ftill prove their whole debt, but upon looking 

into two cafes io 2 Wms. 89*, the firft, ex parte Rtfwicke, before 

Lord Chancellor Macclesfield 9 the fecondf, ex parte Lefebcre 407 . £ 108 J 

before Lord Chancellor Kingy he altered his opinion, and was 

very clear that the 6 s. mud go in difcharge of fo much of the 

debt, and that they could only prove the remaining 14/. under 

Reeve/s commiffion (i). 

• Ex forte Ryfalcke, 2 Wmu 89. A* drew a biU payable to J?, on C. in Ha/fawd, * I • * 
fa ico/. C. accepts it, afterwards A. and C. become bankrupts, and B. receives 40/. 
•/the bill out of Cs effects, after which he wanted to come in as a creditor for the 
»boie 100/. out of AS% effects. 27. permitted to come in as a creditor for ,60/. and 
the Mailer directed to fee whether the other 40/. was paid out. of AS* effects in C'i 
iuo&, or out of C/s own effects j if the latter, then C. is a creditor for this 40/. alfo, 
kutiloutof A.'s effects, then 40/. of the 100/. is paid oil. 

• 

\ Ex partt Lef there, 2 Wmt, 407. A. gives a promifTory note for 200/. payable to 
I. or ordsr. B. indorfes it to C. who indorfes it to D. ^f. if. and C. become bank- 
rupt, aad />. receives 5 x. in the pound on a dividend made by the aJfigoeet of js7 X>. 
fc*ll come in as creditor for 250/. only out of £•*• effects. *' 

(l) See «r parte Wildman, poft. 109. 



Ex parte Whitechurch. Aupfi&tii&i 

174a. 

fwfc «« Ar /A/ Divi/ion, Rule as to AJJignets. 



Ex parte Sitnpfon and others. , Au^ufi the U^ 

*744- 
Fide under the Divijion y Commiffion and Commiffioners. 



Ex parte Simpfon and others* D*cmhtr the 

FiUr w/idrr the fame Divifion. 




Ex parte Kirk. Offober thea6dr» 

«745» 

A Creditor under a commiffion of bankruptcy againft Ovie f Cafe 59. 
being indebted to the petitioner in 79/, drew a note on 
Je affignce of the commiffion as follows : Pray p*, U teYSSSE 

£"i 0- or fa r thefum of 79I. *#/ of my fhare of the dividend, here- for 79/. draws 
c fi# to be made under the commiffion againjl Ovie. °. n A « »ffi*ne*» 

The afiignec accepts it by parol, but before any dividend he payable* rotf. or 
kcomes a bankrupt himfelf 5 the creditors under his comrnif- order,outofi.'t 
fon infill, that Kirk ought to come in pro rata only, for that it tore* thedwi- 

w™ « ^ 1 1 ** ' dend to be made. 

*as not a lpgal acceptance. ar r lgnec accepts 

bf it by parol, but 

*we any drvilend becomes a bankrupt himfelf. AT. intiki to the whole 79/. and not obliged to corns 
«/r# rr.i only, un:sr the coxamlifioo againli the aifi^nes. 

Lord 



109 Toanfttupt. 

fxfarrt *«*, J^ Cianceltor : Though this is not a legal bill of exchange at 
law, yet it is good in equity, the petitioner having pnd a valuable 
consideration for it, and it was a lien upon the effects of O.-ie as 
footi as they came to the affignee's hands, and i* like the c\:fe of a 
bond afhgned by a perfon before he becomes a bankrupt- ; which is 
a good alignment in equity, and the aflignec thereof U inriilcd to 
retain the bond againfl the creditors under the commifficn. 
His Lordfhip diretted the 79/. to be paid to the petitioner. 



•737» 



Twifs V. Majjfey. 
Vide under the Dhjfioti, Commijftoncr and Ccmmifflotiers 9 



June the 4th, • Ex p ar te BotterilL 

174*- 

Cafe 60. T^ ^ ^ bankrupt borrowed 100/. upon bond of the petitioner, 
X a near relation ; the petitioner had arretted him on this bond, 

ZS?/:?;f !!?J a!, d charged him with execution, and had another demand for a 
tupt is in execu- f o * 

cion for one debt, year s rent. 

and tte judgment The petitioner would not waive his execution upon the bond 
Scr^agJnft 1 " debt, and yet' 1 offered to prove the debt for rent under the com- 
fcftaofa4ift'm& miffion ; but the commiifioners refufed to admit him, unlefs he 
"^TthUuSw wou ^ wa ^ his execution. 

the commiffioQ, Upon this he petitions to be admitted a creditor for the. rent, 
notwithstanding J^rd Chancellor : I think it a hard cafe upon the bankrupt, but 
^«Wi«ecu- ** ^ e ( ' e ' >ts arc ,lU * re ty diftin£t, I think he ihould be allowed to* 
fjtmapon the prove, notwithstanding he refufes to waive his execution ( 1 ). 
■***• But upon looking into the petitioner's affidavit, and finding it 

+JL^ defective, as he did not fwear to the time when the bankrupt com- 
^/f. fid.V/X< Z&menced tenant, he difmifled the petition, and faid at the fame 
jjh, time, that he was fatisficd this debt was an after-thought, and 

trump'd up merely to pcrfecutc the bankrupt, by keeping him in 
gaol, and therefore recommended it to the petitioner's attorney to ' 
make it up, and releafe the bankrupt from his confinement. 



dA* 



(l)Ex (arte Mathews, pojl. 3 W. 817. Ex parte CrrnfoZy I Bro. Cb*. Ref. 270, 

Ex parte Wildman. 



DxtmhrXht 
ftoth, 1759. 
S. C. ft Vea. 

1 13. pi. 46. 

r f - J^O RD Chancellor: The prefent petitioner was creditor of a 
^*^ c bankrupt, who had given him bills of exchange on Vanvilien % 

Th* fttjdoner anj others in HMand^ who made themfelves liable by accepting 
takroptwho «***, and afterwards failed and compounded with their creditors* 
fwhimbefidci So that the petitioner had two pcrfonal fecurities. 
biniofcxctop Confider it in the common cafe, abftra&cd from the cafes of 
jErdWthtt bankrupts. 

nadcthemfctves 
liable by acceptance 

Suppofe 



•Bankrupt. u« 

Suppofe feveral obligors, the obligee may have feveral a&ions Exparte 
again ft them all, feveral judgments too, and feveral executions ; WlLDMA ** 
but he (hall not levy more than otu fatisfaftion for his debt \ if he h^ft^S^L 
docs, courts of law will ilep in. The fame in bills of exchange* turns againft each 
actions, tffc. he againft drawer and all the indorfers, but only one ^ 1 ^ Br,fcl,tfluU 
fatisfa&ion for the debt. Sun tne Tldi. 

So under commiffion.* of bankruptcy, the creditor is intitled to f *&ion for his 
come under the commiffion againit all the obligors, drawers, isfr. dcbt " 
and this is not a preference given to fuch a creditor, but a benefit a cxeditor is in- 
he is intitled to at law, upon all his fecurities, till he is compleat- ^e^^JJJj^ 
ly fatisfied. There are two perfons at (take for this debt, one of fion offeankrupt 
them a bankrupt, and the other has made a compofition of 10 /. in a s« n ftaU the 
die pound. obIl ? n ' dr V~ 

™V • • i i ' - t. • ers of notes, &c 

The petitioner had received nothing under the compofition at tuiheiscom- 
Ac time he proved his debt under the commiffion of bankruptcy, &*}\ y fjtis ^ ed » 

■ « r i • t i» r i it I J 9 Petitioner ad- * 

and therefore admitted a creditor for the whole. nutted under *• 

commiffion far 
his whole. deb*, and before a dividend receives i;. 6 J. in the pound, under acompuutiou of lb* 
acceptors of the bills. 

But before a dividend he receives it. 6d. in the pound under 
the compofition of the acceptors of the bills. 

The commiflioners in the commiffion of bankruptcy direct he 
(hall be paid his dividend, after deducting what he had received 
on the bills of exchange. 

The affignees fay he (hall be paid a dividend only on the fum left T , 
after deduaing the 2/. 6 J. inM,hJEmb* 

paid a dividend 
oa the fum left only, afcex deducting the zx. f>d* 

But this would be taking away from a man the double fecurity 
1 he had, and which he may make ufe of in law and equity, till he 
■ is fatisfted his whole debt. 

As this compofition was not paid him till after his debt proved, But as the com* 
he thall receive a dividend on the whole debt, and ihall account portion w-w not 
hereafter for what he has received, or (hall receive on the bills of ££ p^ f £ 
exchange; and this will not be any prejudice to the citate, for if fluii receive' * 
t he receives more from thofe bills of exchange than will anfwer dividend ©n tfc« 
twenty (hillings in the pound, he ihall account to the affignees for * ° c um * 
fuch furplus. 

Ordered therefore the petitioner to be let in to a dividend on his 
whole debt pro rati with the other creditors. 

Mr. dark for the affignees cited the cafe of Cooper vcrfus Pepyf, nitantt^ to6, 
to (hew that the court would not admit a perfon who had received 
a dividend of fix (hillings againft the drawer, to prove more than fin] 
Che remaining fourteen (hillings as a creditor under the commiffion 
againft the indorf ee. - 

Lord Chancellor faid, this differed from that cafe becaufe the 
creditor there had received the benefit before he had attempted to 
prove his debt againft the indorfee under the commiilion. 



tn bankrupt. 

Ex parte Child : In the matter of Cuffz bankrupt* 
Mftnb the 28th, r U Y 

TH E petitioner prays, lie may," for himfelf and the reft of 
the pari lh ioncrs of St Dunf.ans in the Wtjt % be admitted a 
C»/hadbecnfor creditor, under the commiffion againft Jthn Cuff 2, bankrupt, for 
coUeao/o^the tne ^ rm °* 869/. 8 j. id. the balance of the money had and ie- 
land-tax for the ceived by John Cuff from the faid pariftiioners. 

pari/h of St. M 

Dmnftam in the Wcfl y and at the ifluing of the commiffion owed upon the balance 928 /. 1 1 1. to the 

chamberlain of London. 

^^ 1 ^f n ' of The bankrupt was duly appointed collector of a re-afleflment of 
teda a creditoo lt * tne land-tax for -747» for the firft divifion of the faid parifti, and 
and allowed to fince taf the whole land-tax for years 1748, 1749, and 1750, and 
a^teicftoir 1£ as ^ uc ^ rcccivcc * °f * e fevcnl inhabitants for the land-tax and win- 
tbt pauiioncrt. dow duties feveral fums of money, amounting in the whole to 
3391/. ios. and hath only paid to the chamberlain of Loudon 
2522 /• 1 /. 1 1 d. which left the balance aforefaid. 

Mr. Green for the petitioning creditor faid, the only doubt was, 
Whether the commiflioners according to the form of demolitions of 
debts could fuffer one inhabitant to fwcar, that neither he or any 
Other of the inhabitants had received any fecurity or fatisfa&ion. 

Lord Chancellor thought in this cafe, one inhabitant might prove 
for himfelf and the reft of the parifhioners, and ordered it accord* \ 
ingly, becaufe he might fwear, that neither he or the reft of the 
parifhioners to his knowledge or belief had received any fecurity or 
fatisfa&ion. 

#~««*<rt]* Ex parte Peachy. 

2d, 1754. 

Cafe 6j. A Commiffion of bankruptcy taken out in 1739, the bankrupt j 

tx. dead, and the affignce alfo dead, and now at the * diftance 

AaystiUaba^- °* *5 y ears » the petitioner applies to prove a debt which depend* 

rupt and the af- upon an account faid to be fettled between him and the bankrupt, ' 

mmST* emafor What tne petitioner, attempts to prove is over and above Us 

the due of the * <kbt for rent. Upon the 7.6th of December 1 739, the goodsLbcm^ 

commiffion, ap» on the premiifes, he made a diftrefg for rent j die bankrupt wis 

ai^acredi- ^ c on 'y P^ 011 wno knew what was received under the diftrdlt 

-» v tor, the court and it was admitted by the petitioner himfelf it exceeded the ap* 

onthefeeircum- praifement ; and the bankrupt being dead, it was infilled by thfr 

confiderationof counfei for the creditors, tliat this is an unfavourable application, 

the length of efpecially as it refts upon the oath of the petitioner, that he was * 

inttthT'etition ^ ran g cr *° the dividend made under this commiffion till 1745, and 

pc ° D# taking into confideration iikewife, die great length of time fince 

£ *H2 ] the fuing of the commiffion. 

Lord Chancellor : The queftion is, Whether there is fufficieflt 
difclofed in this cafe to warrant me in making an extraordinary 
order to admit the petitioner a creditor under this commiffion. % 

The court, to be fure, is very liberal in admitting perfons to 
dividends, but the prefent application fcems to be of a very ufl* 

reafonable nature. 

Tte 



♦Bankrupt m 

The commiQion ifliicd as long ago as the 9th of February T73Q : Bxfam 
the account made up between the petitioner and the bankrupt the * a cht # 
1 3th of December before, which ihews they were very amicable 
- then, and yet, upon the 26th of the fame month, the petitioner 
is fo adverfe as to take a diftrefs. This is very extraordinary, the 
arrears of rent for 13 years amounted to 400/. levies upon the 
diftrefs 260 /. being about five eighths of the balance of the ac- 
count ; his ignpranceis not of the commiffion, but of the dividend 
only; lies by for 15 years without taking one ftep, and after the 
bankrupt is dead, and the aflignce, wlio might give fomc account 
of this tranfadion, is likewife dead, applies to be admitted as a 
creditor ; fo that, taking it altogether, it (lands upon very fuf- 
picious circumftances. 

The creditors under die commiflion will not receive above nine 
{hillings in the pound ; the petitioner has had under the diftrefs a 
luge funi, of which he has been making intercft, and is much 
better off than any other creditor. 

Upon all the circumftances of the cafe, I am of opinion he ought 
. not to be admited a' creditor ; and therefore let the petition de dif- 
' miffed (1). 

(1) Fide x Ccoie's B. Lam, 541. fee. 1. 

" (I) Contingent Debts. [ 113 J 

Ex parte Elizabeth Greenaway : In the Matter of Edward Green* Dtamker th^/i/ 
away a Bankrupt, a * d » l 74° m . 

Tf D W A R D Greenaway, previous to hts marriage with the Cafe ^4»/ >*< 
*■"* petitioner, gave bis bond to the petitioner s father in the penalty Petitioner's huf- ^ 
v 4 600/. in tritft % that if the marriage fbould take effect, and the pe- Wnd before mar- ^ 
iSkkner fbould furvive Edward Greenaway and if he Jhould before "^J^bon&in'/^ 
\ to death by will or otherwife give or leave the petitioner 300 /. in goods the penalty of-^ 5 ^ 
'-••r ttber pcrfonal or real eflate, fo as the fame fbould be paid by his ex- ^° f ^^°Vf^ 
<*wotf0rx or ajfigns immediately after his death to the petitioner, without mcntot'iooZ /V> 
■J daim by any perfon or perfom whatfoever, then the bond was to be void* to her in cafe toe^ 
la May 173 1, the marriage was had between Edward Grcna- ^^S^/^ 
^.^■•jjand the petitioner, and on the 17 th of Sep! ember laft a com- fionot bankrupt-^ 
•""^aiBkmof bankruptcy iflued againft Edward Geetiawny, where- c 7 ?*?*" out 'j^i 
*&n he was declared a bankrupt, and on the 28th of September a?c"in tcTday*/^ 
Jtowingj the bankrupt died infolvcnt, before any diftribution of tfter. The court ^ 
^eftate, and the petitioner has fince duly proved the bond before x ^^^f/^ 
"* commiffioners, but the affignecs refufc to make any dividend whether fhe,. //* : '^ 

^ Ac petitioner. ihouldcrfliouldjZ^ 

Sk therefore prays, as the hulband made no other provifion * credtnrlTdid* 
**berin his life-time, that (he maybe let in to receive her divi- not give an abfo- 
*»4» out of the bankrupt's eftatc and effeds, in equal degree with lu« opinion: but 

A*«A_ ■• * on alliances coi»« 

wwber creditors, ftntinj fce 

(houidCOCQC UC- 



: : ^ 

•jc-r- 

45f -3 

net* 



Bo.^ 

ricrs 



. der the commiflion for 1 50 /. ordered her a dividend accordingly* 

Vol. L 1 The 



n'j ^Bankrupt. 

Exfartt The counfcl for the petitioner in fitted, that though it was s 

Ott£N\wAr. cont jngcnt debt, yet the foundation of it wa< the bond, and there. 

fore notwithltanding the contingency has happened fince the bank 

ruptcy, yet the wife was intitled to prove die debt, as well as any 

other creditor, 

TKcftatuteof7 The Attorney-general, who was counfcl for the aflignees, in* 

•xwiids o?iy to" "*^ cc * tnc P et » tloner * IS n o* within the ftatutc of the 7 Geo. 1. cap* 31. 

creditor* at a as it is not a debt that will at all events become jdue at a future 

future day cer- day, anc j uncertain whether it can ever take place, and relied up- 

debttonmcrc ° on tne ca ^ oi Tully v. Sparks, 2 L. Raynt. 1546, where, it being 

contingencies likewife uncertain whether the bond in that cafe would ever bo 

hi^ 1Ch ned VC "£* come due or not, being not to take place except upon two contra* 

time or* the a<£* of gencies, which had not botli happened at the time of die acl of 

bankruptcy com- bankruptcy committed, it was impoflible to make fuch abatement 

""J? * 1- , of the five per cent, as the att directs, and therefore the court O^j 

*• ** ■* King's Bench unaminoufly held the bond was not within that^aft.r 

Lord Chancelkr : The queftion his, Whether this is not a debt 

become due before the eltate is diftributcd, and it would be tho 

hardeft cafe in the world, if fuch a perfon mould not be admitted 

a creditor before the eltate is divided away. » 

The penalty in an obligation xsdebitum inprafcnti, and the con* 

dition only fufpends it, fo that it is looked upon as a debt from the 

time of the execution of the bond. 

There are great variety of determinations in the books, andj 
therefore I defire that one counfel of a fide may fpeak to it, on dn 
next day of petitions, uulefs the creditors, at a meeting for thi 
purpofe, will agree to give a fum of money to this poor womaq 
in lieu of her (hare upon the dividend of the bankrupt's effefls. 

The petition was fet down again in the paper of petitions of tb 

24th of January 1 740, when it appeared that the reft of the Ofr 

ditors, fince the hearing of the petition before Chriftmas, had come 

to an agreement, to let in the wife of the bankrupt as a CTeditti 

for 150/. half of the bond debt only, and that it was acquiefc 

under by the petitioner. 

All the cail't Lord Qwncellor : I am very glad you have dompromifed it, 

Spllk^zL. lt * s a mattcr attended with great difficulties, and there has 

A<rym. 546. have been one cafe fince Tully and Sparks in the court of King's Bern 

been determined \ }xll w hat has been determined exprefsly affainft a contingent inl 

agamikacontin- n ' ° ° 

f tm ijiccreii. rclt# 

The diflin&ion taken in this court has been between a trultfol 
the wife, and a bond abfolutely given to the wife herfelf before? 
marriage upon a contingency of her furviving the huiband : T^fla 
is materially different from a truft, becaufe there a perfon wh« 
comes for equity mud do equity, as in the cafe of Holland v. CuIB~ 
forJy 2 Vern. 662. L ^ 

The moft material cafe to the prefent purpofe is, ex parte Opi 
well, ex parte Cazald, ex parte Bate man, 2 Will. 497, Then i 
trader on marriage gives a bond to a trujlee to fecure a thottfand j 
to a wife, if fit furvived him \ the trader becomes a bankrupt \ 
debt not to be allowed} nor any rcfervation to be made for it \ tmj 
iijlcp the dijlributioti) in regard it may never be a debt: But fft& 




■Banttrupt «4 

mttnmcy happen lefre the bankrupt's ejlate be fully diftributed, fuch £*P*t* 
<Ti£isrJhall ccrne in under the czmmtffion. * 

His Lordfliip, without giving any opinion absolutely, one way 
or the other, onLtred the petitioner to he admitted a creditor under the 
tsamfion 3 for the fum of 1 50 /. (the aflignecs confenting thereto in 
court) in full of her demand mentioned in the petition , and that fhefhould 
Ufaid a dividend in refpecl thereof in equal proportion with the other 
mditors of the bankrupt (1). 

(1) Sec next cafe, and Ex parte Mitchclpoft. 129* 




Ex parte Gxoomc. j£/!*0*4& S&/fa«*<S[ 115 jj^r*-.. 

ON articles previous to the marriage of the petitioner, the r 744- f//j&P 
hufband covenants to leave his wife 600 /. on the contingen- Cafe 6$ . ^L^^gS 
Cf of furviving him; a commiflion of bankruptcy is taken out Davie* 514* J^^^r^ 
iprnft the hufband, who dies before' any dividend is made : the s * c# %&& ^ 

firitioner attempted to prove the 606 /. as a debt before the com- A -^"^i^^y/- 
■iffioners, but they refufed her, and therefore applies now by pe- ^marriage, co-^c/5^^ ■'* 
torn to be admitted a creditor for 600 /. venants to leave ^ ^ t 

Mr Solicitor-general for the petitioner cited 2 Will. 497. in- ^/^fu^y § ^ 
Ided ex parte Cafwell, &c. to (hew, that though the debt was con- vives him* he n /f/ . 
fcgtnt, when the obligor became a bankrupt ; yet if the contin- becomes a b ink* fj &^y 3 
■aqr happen before the diftribution made, then fuch contingent £!foje^y dKi.^S^^^ 
editor (hould come in .for his debt : fo if fuch contingency had dend made, th« / ^P 
ppened before the fecond dividend made, the creditor (hould wife ' »«! teUyjp'+Z** 



ae in alfo for his proportion thereof, tliough after die firft divi- cannot be admit- >Pjfar* 

Unci. ted a creditor 

t Mr. Talbot of the fame fide dated, that the petitioner married 2^{j£5^^* ' 



'***€ 



Mi 1742, and brought 600 /• fortune ; the hufband foon after be- hufband. 
comes a bankrupt, and her money has contributed to fatisfy his ^ /,<-/<* 
creditors : infilled this is a debt arifing on a confideration prior to *' • . /, ^ g 
4c ad of bankruptcy, and as the hufband is now dead, tlic debt * "J'/ '" ^ 

tey be faid to have a relation to the day of the contrail. / , /?<~s if' <*'.''* 

Mr. Attorney-general for the affignees infifted, tliat under the fj//((* - ' 

ift of parliament of the 13 Elix. cap. 7. no perfon can be intitled i— — - 

p i diftribution but who is a creditor at the time of the commiflion r ^^ &***"rf 
Sioed, and the commiffioners are thereby directed "to order the ^^/^^ s J a/ • 
*fine for true fatisfatlion and payjnent of the faid creditors ." '/> i/fr** « -' * c Ys £ 

! The ltatute of die 5 th of George the ad, cap. 30. in a claufe re- % * \ / / 

Wag to certificates, fays, " That fuch bankrupt who alter obtain- / 0sr+c+++ ^ ^' °* ' 
j iag thereof (hall be taken in execution or detained in prifon on * "" '"&*•- . 

r account of any debts due or owing before he became a bankrupt^ £xY** *^ / , 

riwll be difdharged out of cuftody on fuch execution, tic" o ' ,#*u?~' ^fy" : *' 
[ But if the conftruckvpn of this a£t fhould be that die bankrupt \C l ~ ' 'y "* . . , 

$Ak to contingent debts that become due after, the bankruptcy ^ l**/>" * * ' */ 'o 
^1 then he is not difcharged, fuch a conftru£tion would iutirely/ C J.^ £&< ?*& 
Wttrn this act of parliament. ,//n^£ A*& f y> • 

The judges were of opinion, in a cafe upon the conftuflipn ofr/^/'**-*^ f */ 
kolda&tof parliament relating to bankrupts, that a crcditor^;^^ *€'c* * '"- ^ 

whofe 
1% 



n£ ■Bankrupt. 

Est partt whofc debt was contra&ed before, but did not become due ti; 
CtooMi. t ^ e a £j. Q f bankruptcy committed, could no* take out a commifiion 
but on an appeal afterwards to the houfe of Lords, it was then 
determined otherwifc. 

He cited the cafe ex parte Smithy the 23d of January 1741, in 
which a contingent creditor, who applied to be admitted to prove 
his debt, was denied by the court, and another cafe, ex parte Kkfr 
January 1742 (1), where it was alfo denied. 
[116] Mr. Solicitor- general in hi$ reply faid, that thefe two cafes wtre 
not abfolutely determined, and tjiere is no one cafe where LorJ 
King's diftin&ion in ex parte CafiueUhzs been controverted. 

He, infilled that the cafes make no diftin&ion between a bond 
and a covenant, and that there is no claufe in any aft of parliament 
which confines the diftribution to creditors only at the time oJ 
the bankruptcy committed, or excludes creditors whofe contingcnS 
debts take place before diftribution. 

Before the ftatute of the 7 Geo. 1 . cap. 31 . he faid, there was M 
doubt at all bnt the creditor might come in when the debt becart* 
payable, but the only doubt was, Whether they might come ri 
before ; therefore to remedy this inconvenience of the effeBs behr m 
divided away before fuch creditor could come in, the aft enables thee 
to prove their feveral fecurities before they become payable. 

Lord Ooancellor ordered it to ftand over till this day, that b 
might give his opinion at the fame time upon another contingen 
cafe ex parte IVinchefler^ which came on two days after the cal 
ex parte Groomc. 
A*y ?* Jr*** The ftate of th e cafe ex parte Winchefl er (a). 
&f+ij.Jrc • UP*- Previous to the marriage of the petitioner with Elizabeth Gr/r*k 
daighter of the bankrupt, u by an indenture dated the 2d of jJ^ 
u ! 739> made between the petitioner of the one part, and JW* 
i( Grant the bankrupt, and Elizabeth the petitioner's wife of ti* 
u other part, reciting the then intended marriage between thepe* 
w titioner and Elizabeth, and that John Grant had before the e»* 
u ecution of the indenture paid the petitioner 500 /. and by a boofl 
" dated the fame day fecured 1000 /• more to be paid to thepttt- 
" tioner, his executors, adminiflrators and afligns within 12 monthi 
€€ after the death of the furvivor of John Grant and Barbara Mi 
cc wife, together with intereft for the fame at 4 1, per cent. per m& 
" by equal half yearly payments, which 506 /. then paid, and ioctaK 
u fecured to be paid t was declared to be in full for the wife's pop- 
f< tion : It was agreed, and the petitioner covenanted with Jol0 
• c Grant, that the petitioner's heirs, executors or adminiftratoi* 
u {hould within one month after the petitioner's death, pty tS 
u Jolm Grant, his executors or adminiflrators, the fum of 2000J 
c< to be placed out at intereft for the petitioner's wife, and the iC 
u fue of the marriage 5 and it was alfo agreed, that the 200oi 
u and the 1000 /. when due, (hould be placed out at intereft intB 
«• n?.mes of two truftees, in tnift after the death of the farvHV 
'< of petitioner and his wife, to diftribute the 3000/. aVnottgW 

(1) Davies 254. S. C. (a) Davus 530. S. C. . • 

"chikbe 



■Bantttupt. *** 

* children in fuch proportions as the petitioner and his wife (hould ** P*"* 

"dire£t, and for want of fuch direction, in truft to divide the °*p°"*' 

u fame between fuch children equally, and in cafe there was no 

"hfue of the marriage, to pay iooo /. part of the 3000/, to fuch 

u pcrfons as the petitioner's wife (hould appoint, and for want of 

,c fuch appointment, to the petitioner, his heirs, executors or ad- 

w miniftrators. 

The marriage was accordingly had between the petitioner and C x x 7 3 
Elizabeth Grant, and there was iflue of the marriage living three 
children. John Grant regularly paid the intereft of the bond to the 
25th of December laft y but no payment had been fincc made, and 
the condition of the bond was broken by the non-payment of the - 
intereft, which became due to the petitioner on Midfummer day. 

In April laft a commlffion of bankruptcy iflued againft John 
Grant, and he was thereon declared a bankrupt, and aflignees 
chofen, but no dividend yet made of the bankrupt's eftate, and 
the petitioner has applied to the commiflioners to be admitted a 
creditor for the (aid fum of iopo /• but fuch fum not being payable 
•till after the death of John Grants and Barbara his wife, the 
loamuTioners refufed to admit the petitioner a, creditor; and there- 
fare he preferred his petition to be admitted a creditor for the princi- 
pal fum of 1000 1. and that the dividends thereof might be laid out ifi 
tbepvrcbafe of South-Sea annuities, for the benefit of the petitioner ', his 
mfe and children ; and alfo prays to be admitted a creditor under the 
tmmijfion for io 1. being the half year's intereft due on the bond at 
Uidfumnper laft. 

Lord Chancel/or: Thefe are fometimes cafes of value; more 
often cafes ~ of hardfhip and compaflion. If were to be wiflied 
-that they were provided for by a£t of parliament, and I hope fome 
gentleman who hears me will confider how to rectify this by fome 
future ftatute. 

There have been a great many cafes in this court upon this sec Davlet 535* 
joint , fome where a hufband before a marriage has contracted 
with truftees for the wife, to pay a fum of money in his life-time 
far her benefit, ifjhefurvives, and if (he dies, for children ; and 
if no children, for the benefit of the hufband. 

There have been other cafes where the time of payment does 
not arife, till the contingency takes effect after the death of the 
'hufband. 

And there have been other cafes, where the father of the wife 
lias entered into a covenant to pay a fum of money after the death 

himfelf and his wife, and intereft in the mean time, which is 
the prefent cafe, ex parte W'mchefler % and other cafes like that, ex 
forte Grootne. 

They will fall under very different confiderations, and I will 
•gve my opinion upon all of them. 

If a hufband becomes a bankrupt after a breach of payment to 
truftees, they have always been admitted creditors upon equitable 
Jams, and the court has taken care that the intereft of the money 

ill be paid to the creditors under the commiflion, during the 

I 3 life 



•4i7 'Bankrupt 

Ex parte life of the hufcand, and the principal fecured to the wif 
Oeoomi. ca f e ^ e furvives her huftand ( i ). 

If judgment had been given at law by the hufband for this 
'tis a debt notwithftanding the defeazance, and the tru 
would have been admitted as creditors, though the terms oi 
bond itfelf be otherwife. 
r j » » i As t o fplnchefttr's cafe^ where the father of the wife has gh 

f*£~**£-^rj&£d,^, fond f jh e hujhand to pay him the principal fttm of joco 1. afte 
f ^u^2^* JJS death of bimfelf and his wife, and interejl at 4 percent, by half] 
payments in the mean time. Upon what terms (hall the party b< 
Jieved againft the penalty ? Why upon paying what is in confei 
due out of the eftate. 

Hete was clearly a breach of the condition of this bond be 
the bankruptcy, for the half year's intcreft was become du 
Chrifttnas, but not paid till the 10th of January, and there! 
not being paid at the day, the penalty was forfeited at law. 

It has been faid, it turns upon the aft for the amendment oi 
law the 4th and 5th of Q Anne, cap. 16. fee. 12, " That v 
u an aftion of debt is brought upon any bond, which hath a « 
4C dition or defeazance to make void the fame upon payment) 
€i leffcr fum, at a day or place certain, if the obligor, his heirs, exi 
" tors, or adminiftrators, have before the aftion brought paid 
cc principal and intereft due, though fuch payment was not n 
• • ftri&ly according to the condition or defeazance, yet it ma; 
" pleaded in bar* and (hall be as effeftual as if the money had i 
" paid at the day and place according to the condition, and 
" been fo pleaded." 

Before this aft of parliament, the bond was forfeited if not ; 
tt the day» At a day or place certain, are material words: Th 
a new defence, and a new plea given by the aft of parliame 
and therefore the common way of pleading is, that all interdt 
paid before aftion brought. 

But this is not a bond with a defeazance for the payment 
lefler fum at a day certain, for here the principal is to be pai 
an uncertain time ; for it is to be paid within a twelvemonth 2 
the death of the furvivor of father and mother. It is not there 
a bond within the defcription of the ftatute, nor did the aft of 
liament intend to comprehend bonds of this nature. 
A bond payaWe Yot fuppofe a bond payable at inftallments, the obligee 
thcobiig ™upon judgment on the whole penalty, upon a breach of payment at 
breach of pay- firlt in ft ailment ; why, even a court of law would in fuch cafe 
•"ton*' *** &ft 0c ! mta bty> for upon the obligor's applying to the court there, 
judgmenton the offering to pay the money due at the inftallment, and agreein 
whole penalty; let the judgment (land as a fecurity for the reft, they willrel 

on payment or ^ ' v Qn pa y ment Q { fa mone y then due and Cofts. 

the money due »/,.•*•-' • 1 • 1 oT r •• 1 

and cofts, eve if this *afe is not within the aft of parliament, then it co 

a court of law within the conftruftion of the other two heads of cafes, and 
M^T* ** Winchejler ought to be admitted a creditor. 

On the 4th fet of cafes, which is Groomt s, I am of opii 
(though I am forry I mutt go on fuch niceties) that he cannol 

fi) Ex parte Smith, 1 Ceoke'j B. Laws, 257. Ex parti Brrtn, ibid. 261. £*/ 
M-tford, I Bn. Cba. Ca. 398. 

admit 



'Banfempt. us 

idmitteH a creditor j in all the other cafes there was a remedy at law 2* pane 
before fuch time as the aft of bankruptcy was committed, or com- c * ooMf • 
miffion tak^n out, but here there was not. 

As to the cafe that has been mentioned, ex parte Cafivcll % isle. The c.Se ex part 
'tis barely an opinion of Lord King, and not the cafe in judgment ; Cajwii, &>. 
but he did obiter declare his opinion only. My • Lord Talbot after* wa .\ an c/,i / er 
wards doubted of Lord King's opinion ; and in a cafe before me King*? only an4 
fince, I have differed from hun intirely, and fee no occafion to al- not th, c«fe ia 
tcr my opinion. judgment. 

The queflion turns on the new aft of parliament of the 5th of r *i iq -1 
Gar*exhc Second, rap. Y*. fee. 7. I think that the privilege of ^ * 

creditors to come in, and bankrupts to be dlfcharged from debts, 
is co ex ten five and com men f urate, and very equitable : for it 
vould otherwife make an inequality among the creditors, for a 
creditor, whofe debt was due l>efore the taking out of the commif- 
fion, (hall perhaps have no more than 5 /. in the pound, and this 
creditor, whofe debt was not due till a fecond di!kribution,,(haIl 
come in for as much as the other creditor, and likewife have 
a remedy open to him for the reft againft the bankrupt. 

For the words of the 5th of George the Second are, And every 
fiich bankrupt (hall be discharged from fuch debts asjhall be due and 
nimg at the time of the bankruptcy ; fo that this would be a 
{bring injuftice againft the creditors at the time of the commiffion 
taken out. 

Coramhfioners very rightly declare a man a bankrupt only be- 
fore i Suing the commiilion, without fpecifying any pretife time. 

The claufe relating to mutual credit, fee. 28. (hews plainly the 
aft intended to confine it to creditors at the time of the cqm- 
wiflion, <c That where it (hall appear to the commiflioners that 
u there hath been mutual credit given by the bankrupt and any 
"other perfon, 01 mutual debts between the bankrupt and any 
ft other peifon, at any time before fitch perfon became bankrupt > the 
"commiflioners, fcfi*. (hall (late the account between them, &c" 

I will put this cafe: Suppofe a debt due from Mr. Groome to the 
bankrupt before his bankruptcy, and that the bankrupt owed him ^ £ debt °7* 
* debt on>bond upon a contingency that took place after the bank- hfciJinkrupre^ 
tuptcy, and before the final dividend, would it not be a great hard- and creditor to 
ftip upon the reft that fuch creditor (hould be at liberty to fet off? Jf™^ "^ 

To go a ftep further. By the ftatute of the 7th of George the takes \ Uct after 
firft, cap. *\i. it is enacted as follows, that " All and every per- die bankruptcy 
"fou or perfons, who now arc or (hall become bankrupts, fhall ^f^ ^*^- 
u be discharged of and from all and every fuch bond, note, fcfr. under ihe cksuf« 
M and (hall have the benefit of the ftatutes now in force againft n-iating to nw. 
u bankrupts in like manner to all intents and purpofes, as if fuch 1 "* vrCu ' u 
w fum of money had been due and payable before the time of his 
"becoming bankrupt." 

In Tul/y v. Sparif 9 Lord Raymond, 2d ikL 1546, there were 
t*o contingencies, and as both had not happened at the time of 
tbe a& of bankruptcy, it being'uncerrain whether the bond would 
tor become due or not, it was impofLhle to make fuch abate 

ment 

14 



.i» OSatrttrttpt 

MxpsrH mC nt of $ per cent, as the aft dire&s, and therefore the court 
qioomx. Ki n g» 8 Bench were of opinion the bond was not within the act 
the 7 th of George the Firfh 

There is no fuch thing as drawing a line between the continge 
cy not happening before the bankruptcy, and yet happening befc 
the time of diftribution : this would not only be a hardfhip 1 
the bankrupt, and 011 the reft of the creditors whofe debts wc 
a&ually due, but would have given the contingent creditor a i 
perior privilege, by leaving it open to him to recover the remai 
<ler of the debt again ft the bankrupt. 

The cafe of Groome may have hardftiips, and I am forry for i 
but, as the law now (lands, I cannot determine otherwife. 
hope however, as I faid before, fome Gentleman will think of 
clauf* by way of amendment to this Iaft bankrupt aft, which m; 
remedy and fettle this for the future. 

The petition of Groome was difmifled ( 1 )• 
And with regard to Mr. Winchefler, his Lordfhip ordered th 
the petitioner be at liberty to prove his debt of 1 000 1. and that he 
admitted a creditor under the commiffion for what he Jhall fu pm 
and be paid out of the bankrupt's eft ate a dividend in refpetl tberec 
ratcably with the other creditors of the bankrupt* 

(0 Ex parte Michell, next cafe. Ex Davits 254. I Cooke's E. Laws, 2] 
parte Oik, 7 Kin. 72*//. 7. Ex parte King, 

J*<*"btcemb* the Jjc+^UZ* J^*'**^ 

L/*# 3d ' ini V.Q^4<^ap/E X parte Elizabeth Michell. 

^^Cafe 66,^ . 

%r*»7i.s.c. T)ENJAMIN MICHELL, in purfuancc of articles befc 

\**/ b.M. Inpurfu- D his marriage with petitioner, did, on the 27th of Janua 
ancc of arttdet in the 1 2th year of the late King, execute a bond to Thorn 
i!STri^!j5 e Mickell and William Rous, the truftees under the articles in t 

Uitn tne perm- ... 1 i_ -i -r t. "t • e_» 

oner, executed a penalty of i ooo /, conditioned to be void it the h?irs, C3Y. 
bondtoT.il/. jf en j % Michell ihould pay to Thomas Michell and William Re 
"es^dfr'the 11 ^ 5°° '• within three months next after the death ®f Benjdn 
articles, \.\ the* Michell for the ufe of the petitioner, in cafe (lie fliould outlive l 
penalty oficoo/. hufband, or in cafe (he mould not furvive him, to the ufe of I 

conditioned to be , .. . 1 ., • -r 

void if cht heirs, child oi' children, it any; 

ice. of D. M. 

Aould pay to T. Af. md W. R. 5000/. within three months next after the death of B. M. for the trf 

the petitioner j o r in cJc (he ihould not furviTe, to the ufe of her child or children, if any. 

bankruptcy^?- A commiffion of bankruptcy iflued againft Benjamin Mich 

fte* again* b. w ho lived fome time after, and died on the firft of April i^jl 

^efirfto^rl/, °" the 28t . h oi April 1 749, a dividend of nine (hillings in t 

1749: oathe r ' pound was directed to be made of Michel?* eft^tc. 

a 8 th of the fame 

month a dividend is piade of 9 1. in the pound. 

The comm'flnners would not admit the petitioner a crec 
tor without aa o*dcr of the court. 

'S 



TBanitrapt. no 

She petitioned to be admitted a creditor, and to be paid out Export* 
of the money remaining in aflignees' hands, a dividend, in pro- MxCH * LI ^ 
portion to what hath been already paid to other creditors. The pcitioner 

Ltrd Chancellor mentioned the cafe ex parte Ca/well, &c. P™* 8 ta b * P** 
2 P. Wms. 497. a. 499. where Lord chancellor King upon divi4cnd?° n C 
fuch a contingent debt directed, as hufband died before a -•£* /l*c/><r'~ 
diridend, the wife to be admitted to prove it ; and the cafe y 4' '// ., 
pi parte Greenaway ( 1 ) before himfelf* where on his ordering it t&y}/ " ; 

Sand over to give aflignees and creditors an oportunity of com T ''. y/ 1 f* "*£**) 
ppmlfmg it with the wife, they admitted her a creditor for 150/. *»%£ ?C^ 
Wf her demand. [ 121 yJ.<v* 

The aflignees being ferved here with notice, and no counfel Affiles beinf^r 
attending for them, his Lordfhip dire&ed flic (hould be admitted 5 enr - J ^ no - 
9 creditor, and to a dividend oi nine ihillings, not being oppofed* counfel attending 

for them, direct- 
ed ineifcould be admitted a creditor, and receive a dividend of 9 u in the pound, not htmg oppoftd. 

. His Lordfhip declared, that if there had been a judgment, he ifxhere had been 
(hould have thought this would have made it an immediate debt (l) a judgment, it 
pd (he would have been intitled to come in as a claimant before would have made 
tbc death of the hufband, and aflignees mult then have retained ^bV^Ve* 8 
fafficient in their hands on a dividend day, to anfwer a propor* would hare been 
tbnablc dividend to the petitioner when the event happened, in fo^dtoW 

j / . r , r , , ,. ••/•». come in as a claw 

«c lame manner as in the cafe of obligees tn rejpondentia y or mant before her 
wttomry bond, or perfons on policies of infurance, under an hufband's death § 
aft of parliament of the 1 9th of George .the Second, where it can- j^, ^j^jjjjj 
Wt be known whether a lofs has happened or not. have retained 

fufficientoo a 
dividend day, to anfwer a proportionable dividend to the petitioner when the event happened* 

(l) jfate 113. (2) SecExpaite fViucbeJIer ante 1 17. 

January the aid, 175a, * 

hri Chancellor had fome doubt after he had pronounced the Lord Chance Uor 
"•rterlaft day of petitions, % and therefore would not fuffer the Sopin^w 
*tcretary to draw up the order, though not defended. to a wife's being 

Upon a fearch at the bankrupt office, there was found the ^jjj£ ** 4 
^afc ex parte Greenaway, ( 1 ) and the four cafes which came on Lord Tahat 
together tipon contingencies, by the order of Lord Hardwicke who doubting of it, 
'laid that Lord King* was -an obiter opinion as to a wife's being ^J^fcafe 
admitted to a dividend ; that Lord Talbot doubted of it, and that exp*r\t Groom* 
kc himfelf alfo doubted of it ; and in a cafe ex parte Groome f (2) in DKtmbtr 174.x, 
Dumber 1741, was of opinion the creditor could not be ad- fochlperfoncre.. 
Bitted, and founded his opinion on Tully verf. Sparks in the ditor, his Lord- 
court of King's Bench; and therefore in this cafe of Michell he ?X7±tullc- 
declared that he was very unwilling to make a precedent, though tary to draw up 
this appeared to be a very hard cafe. The only difference be- the order pro- 
ven Grcome and this, is that Groome's cafe was upon contract, fo^dayof 

- petitions, tho* 
*ot defended, but recommended it tothe aJBjnewtocompromifeit with the petitioner. 

* {a)<jf*tcl\i. {i)4niet\i % 

3 but 



tai T3flnittttpt. 

F.xptrte but this upon bond ; and unlefs you can make it debitum in pre 
tficMix.!.* Jenii folvcndum in future, which will be difficult to do, the peti 
tioner will not be intitled to prove it. In thofe cafes where h 
had let in fuch creditors, a judgment was given at the time 
which is an immediate debt at law, and fufpended only in equit 
upon the defeazance. His Lordihip ordered it to ftand over ti 
next day of petitions, and in the mean time recommended it 1 
the aflignees to compromise with the petitioner ( i )• 

(i) See 3 tnif.zji. 

I 122 ] (^) & y t* M ** Drawers and Indorfors of Bills of Exchange. 

Dvember the £* parte Walton and others ; in the Matter of IVdliam Win} 
*3<*, »743« more, a Bankrupt. 

Cafe 67. jAron Richardfon and Edward Stephens, on the 25th of Jun 

Jr. draws bills of «^» 1740, entered into co-partnerlhip, which was to be carric* 

who hS no * on ' n L°*d° n <> in the names of Richardfon and Company ; and i 

effete of If. in was alfo agreed, that Stephens fhould be at liberty to carry on 

his hands, they f cpara tc trade at BrifioL on his own account, and for his OU- 
tre transmitted , * c J 9 

*to*.andCo. benefit. 

audiadorfedoTcr On the 1 6th of March 1740, a joint commifiion of bankrup 
ri^iSnsfthV c 7 Iffued a 6 ainft Aaron RMardfm and Edward Stephens, and d 
affignees of *. petitioners were chofen aflignees. 

andCo.muftbe In December and January, 1 740, William Win/ mere drew f 
•UtorTttndcr "* vcra * bills °^ exchange en Richardfon and company, payable 
^.•scommiflion Harper or order, for different fums, amounting to 2500/. whi« 
for fo much as bills were accepted by Richardfon and company for WmfmorSs fc 
to the indoles account, on his undertaking to fend them money or effe&s, top 
•f#Vs bills of and fatisfy thefe bills before they fell due 5 but he did not ke 

I'lE Co/." 4 " his P romife - 

fimmiffion. Winfmore, in January and February 1 740, drew feveral otl 

bills of exchange on Harris (who was his agent in London), foi 
of which were payable to Harper, and others to Edward Stefh 
or order, for different fums, amounting to 2060/. which 1 
bills were remitted to Richardfon and company by Stephens on 1 
own private account, in order to enable them to difcharge bi 
of exchange, which Stephens had, on his feparate account, 
order to ferve Winfmore, drawn on Richardfon and company, a 
Richardfon and company negotiated the faid bilk as Stephi 
directed ; and feveral of them, to the amount of 1 565 /. beii 
drawn by Winfmore on Hams, Richardfon and company indorf 
the fame, not doubting but Winfmore or Harris would have tak 
care the fame were punctually paid when they fell due, but, i 
ftead thereof, Winfmore Hopped payment, and never remitt 
Richardfon and company any money or efie&s to pay the faid bil 
or any of them. 

On the 29th of April 1742, before any dividend was made 
Win[mri% cflate, the petitionersj as aflignees of Richardfon a 

com pa 



company, exhibited their claim under his commiflion for 2500/. 2* P* rt * i 

the amount of die bills accepted, and for 475 /. part of the bill* Waltw ^ 

which had been indorfed by them the faid Richard/on and company 

for account of Winfmore y which were all the bills that had been 

proved under the commiflion a gainft Richard/on and company; 

ad tfie commifEoners admitted the claim under the commiMiou 

againft Win/more. 

A dividend of two (hillings and nine-pence in the pound was 
afterwards ordered to be made to Winfmorf* creditors who had ^ 

pro?ed their debts, and alfo a refervation to anfwer a like dividend *■ X2 i < 
on the petitioner's claim, when they fliould make the fame. 

On the 29th day of July 1742, a dividend of five (hillings in the 
pound was made among die creditors of Richardfon and company, 
and the petitioners had paid the dividend of five {hillings to great 
part of the bearers of the faid bills, and were ready to pay the fame 
to the reft, after a deduction out of their debts to the amount of 
the two (hilling* -and nine pence in the, pound, divided under 
Winfmr/s commiflion. The dividend of live (hillings in the 
pound, in the bankruptcy of Richard/in and company, on the faid 
bills, amounted to 744^ and therefore the petitioners the aflignees 
of that commiflion pray, that they may be admitted creditors un- 
fa the commiifion againft Winfmore % for the fum of 744 /• the 
amount of the dividend of five (hillings in the pound, and for all 
fitch future fum* .as fhould be paid out of the eflate of Richard/on 
and company, in refpett of the faid bills, and likewife for all fuch 
other bills drawn by IVinfmore, or by his order and direction, and 
accepted and indorfed by Richard/on and company, without con- 
federation or value, which fhould hereafter be proved under the 
commiflion againft them, and that the aflignees of IVinfmort* 
cftate might be ordered to pay the petitioners the faid dividend 
rf two (hillings and nine pence in the pound, and ;:11 future di- 
vidends rateably with the other creditors, for the funis before 
mentioned for the benefit of the petitioners* and the reit of die 
^editors of Richard/on and company. 

Lord Chancellor : The queftiou is, Whether the aflignees cf 
hchardjon and company, the indorfors of thefe bills of exchange, 
ftcintided to come in under Winfimrts commiflion, for fo much 
ts the indorfees of Richardfon and company have received under 
the commiflion againft Richardfon and company. 

Winftnorc fwears that in January and February 1740, he drew 
fewal bills of exchange on Harris his agent in Loudon, amounting 
to 2060/. or thereabouts, which bills were tranfmittcd by Stephens 
W his own private account to Richardfon and company, and in- 
dorfed over by them to feveral perfons. 

The doubt with me was, whether Harris had any efTefts of 
fPinfmorfs in his hands, for if he had, there would have been no 
pretencethat the indorfors (hould come in againft JVinfmorfs eftatc. 
In bills of exchange, there is a double contract, the firft between 
Ae principal debtor and creditor, and alfo an implied contract, 
Alt the principal debtor will indemnify the furety, fo that if the 
Otdtior the indorfee comes upon the furety the indorfor, the in- 



\ dorfor 

i 



n3 "Bankrupt 

BpP"* dorfor or hi* affignces miy come in againft the original or prii 
W AMm ' pal debtor. 

Thus it (lands between principal and furety, and is likewife 
cafe, where an indorfor is barely a furety, and no confiderat 
is paid by the original drawer* 
f 124 ] But put another cafe ; A. draws a bill upon £• who has eft 

A. draws a b 1 of A.'& in his hands, afterwards his bill is negotiated and indor 
on B. who has over; there is do furetyfhip in this cafe, for A* did not dn\ 
hS^ds'tfttr" upon B. as a furety, but as having effe&s of A* in his hands, 
wards it is ncgo- which he was obliged to anfwer the draft of A. and theref 
tiated and indor- t he indorfing it over to others will not make the indorfor onl] 
w^iUoVmake 5 ^ nature of fureties to A* but every indorfor will be confide 
the indorfon as a new original dawer. 

only m the ]3 ut j^g Harris appears to have had no efiefls of Win[mort\ 

nature or fureties , . , . 1 1 r 1 • 1 • i- w 

to A. but every "is hands, and therefore accepted it merely to give credit to U » 

indorfor will be more as a furety y and confoquently the aflignees of Richard/on \ 

orieinal^drawerT com P anv mxx & be admitted as creditors under JVinfmore's coinn 

fion for fo much as they have paid under Ricbardfon^ commifl 

to the indorfees of Winfmore's bills of exchange. 

His Lordfhip therefore ordered, that the petitioners the affij 
ees of Ricbardfon and company be admitted to come in as credit 
under lf r inftnore f s commillion for 744 /. and that they be pai 
dividend out of his eftate in refpcdl thereof ratcably with the ot 
^ creditors, and that in all future dividends the petitioners be j 

in refpeft of the faid fum of 744/. ratcably in equal propori 
with the other creditors of Whjmore fceking relief under that c< 
miflion, in trufl; for themfelvcs and the fever -d other joint < 
ditors of Ricbardfon and company, 

Nwmbtr the £ x parte Byas 

4th 1743. ^ * 

MRS. Devereux being indebted to Martin Kaniell in 71 /. 
goods foldon the 28th of Augufl 1734, gave him the 
71 //gave him lowing note: Ipromife to pay to Martin Kankell at queen Caroli: 
the i following head in Taviftock-ftreet Covent Garden, the fum rf fivetity 
to pay to M^K. pounds, witnefs my handy Augufl: 28 th 1734. E. Devereux. 
thijime/71]. Martin Kankell being indebted to the petitioner in 92/. 5 

Aug^^""*' delivered to him Mrs. Dcoercux's note, that the petitioner mi 
1734. e'.D. receive the money due thereon in part of his debt, and took of 
M. K. being in- petitioner a receipt for the fame in the words following : Rece* 
0^92/^"" 20th of Dec. 1734, « bill for 71 /. which when paid will be on 
19*. o d. delivers count per Thomas Byas, 

B. ZVs note to 

him that he might receive the money in part of his debt, and took the following receipt, JReeewn 
Dec. 1734, a Ml for^iX. which %oben (.aidnvill be on account ftr Thomas Byas. M..K. becom 
bankrupt, but not having indorfed or a&gaed the note to petitioner, the aflignees apply to D's fcli 
and receive of hi m the 7 1 /. 

The aflignees of A?s eftate ought to be considered as tmftees for the petitioner wjth refpecl to the 
of 71 /. and ordered to pay him the money accordingly (x). 

(1) Fide Tjrrel v, Jfyx, pcfi. 2 vci 558. Wincb v. Jfc^.l Dwm. and ttf't RefS 



The 19th of March 1734* a commiffion of bankruptcy lilued H*f*n 
Ijainft Martin Kaniell, Mrs. Devereux died in 1735, and by her/ **J,* /gg&^/Z 
will charged all her eftate real and perfonal with the payment of^***^ 
her debts. ^ # ^***L i 

Kankell not having indorfed or afligned the faid note to the pe* ^^-« • 
titioner, the aflignees applied to Mrs. Devereuk's folicitor, and " > 
'received the 7 1 /. of him on giving fecurity to indemnify him ^2^*^' 
againft the petitioner's claim, who had the note in his cuftody <? # a^ate* *&£ 
and pofleflion. • y 

llie petitioner proved his whole debt of pa /. 19 /. under Kan- 
ill's commiflion, but at the fame time infilled on having the be- 
nefit of the note, and that the aflignees ought not to have re- 
ceived the 71/. anil that the fame having been fo received by 
them in prejudice to the petitioner, ought to be paid over to him, 
and therefore prays that the aflignees of KankelPs eftate may, out 
of the money now in their hands, pay to the petitioner the 71 /• 
which they received for the money due on Mrs. Devereux* 's note. 

Lord Chancellor : I am of opinion that the aflignees of Kankelt* 
eftate under the commiflion* ought to be confidered as truftees 
for the petitioner, with refpe& to the fum of 7 x /• which they re* 
ceived on account of the note given by Mrs. Devereux in the pe- 
tition, and do order the aflignees to pay forthwith the 71 /• to the 
petitioner according to the prayer of his petition. 

Ex parte Kirk. *%%****** 

Fide -under the Divi/lon, Rule at to Creditors: 

Ex parte Thompfon.^^V^- *# >£*< **• 

jf^ Gives a note of his hand payable to S. two months from q^ ^ 

the date for 100 /. who gave no confideration. B. indorfes . . 

« over to the petitioner, but allows a difcount of a guinea and a p t "y£iTtd B. 
hall, being at the rate of 9 /• per cent, when the note became due, two month* from 
the petitioner takes a joint bond from the drawer and indorfor fof ^^ ^^ 
Ac too /. though he paid only 98/. 8/. 6d. the commiffioners fcsitoTcrtoC. 
had admitted him as a creditor under a commiflion againft the but allows *dif- 
drawer, but finding out this fa& afterwards, they ordered his Q °™*£^£ % \% 

dividend to be flopped. under a commif- 

fion againft A* 
fir die whole fain, but commiffioners finding out this fa& aftcrwirdi, Aopc his diyidend, 

He now petitions Lord Chancellor to be admitted to his (hare 
tfthe dividend. [ I2t5 ] 

m Lad Chancellor would not direft him to be admitted to the di- L*4Ch**edhr 
*Wetid ? but ordered an iffue to try whether the bond was ufurious J*^3f JJjjSf 
fcfore : Lord* Chief Jttftice IVilles ( i). an hT»e to try 

whether the 
bond W* ttiWrsow|» 

(x) See Ex parte Sty, t Vef. 489. Lrae v. ITm'Ier, DQugl. 70S. 



126 T&atftrnpt 

+*> » 747- Ex farte Thomas. 

Cafe 70. 
5. C. ante 73. rjT\ H E bankrupt petitioned to fuperfede the eommlfllon againft 
taaVS"ofl 1 himfclf, becaufe the petitioning creditor's debt arofe 
bankruptcy. only from a note that had been indorfcd to him after the peti- 
Sr' l "* Qr f e i t * 0!lcr ** ac * committed an a& of bankruptcy; but as it ap- 
•po^'which the P f ' are ^j that the note itfelf was given before any a& of bank- 
iudorfee may ruptcy, though indorfed after, Lord Chance7lor thought it a 
aSL°u U ^b^" ^ ebt upon wJl ich the petitioning creditor might take out the 
fuptc/againft " commiffion (1). 4 
the drawer. 

(1) Anon. 2 Wilf. 135. Bi/tgleyv. Maddifin % I C*oie's B. Law it. 

Z&TZJ& <?.~4.<r t^jUWillon v. Hyde and Miebdl. 

Cafe 71. 70 RD Chancellor : ThisWll is to have an allowance for 712/. 
ioTf s. c/* pl " out °^ a ^ um °^ 3 00 °^ whidi has been recovered in an ac- 

The plaintiff tlon at * aw > ^y ^ ie defendants the affignees of Michell the bank- 
and one Miebdl rupt again it the plaintiff. 

^facT 01 " rlie cafc is * That Mr " M* cbell > W ^° was a merchant, had 

tcA«r, princU ' on g dealings with die plaintiff before the 18th April, 1743, 
pally negotiating when he committed an ail of bankruptcy! which the plaintiff in- 

Jbm°i CXch2 ttf C fiftcd Was a P rivatc ac ^ of bankru ptcyj and that for fome time 
the ithof *jtmc a f lcr M r » Michell appeared in publick in all places where mer- 

1743, and on chants refort, without fufoicion of his being a bankrupt. 

%*%%{> T,1C dealin g* between Mr. Michell and die plaintiff, as it ap. 

MUbtU commit- pears in the caufe, commenced in 1742, and continued after 

* da pri* atea & the 1 8th of April 1747, up to the 8th of June following, and 

thefems pudby tnc commiffion of bankruptcy was dated the 30th of Novcm* 

MkbeUfotthefc 6cr $ I743« 

5^2J5ff° rfnc tranfactions between them from the 18th of April, 1743, 

amounted to to the 8th of June following were of various forts, but appear to 

3000/. be fair ones, and were principally in negotiating bills of exchange 

upon which the plaintiff advanced to Mr- Michell money to a 

confulcrable amount. 

Several fums were alfo paid by the plaintiff to Mr. Michell 
during this fpace of time ; lome paid to Mr. MiclxW% own hand, 
fome to his order, fome by way of loan, and other fums by way 
of money laid out for his ufe, for premiums on infurances for 
his benefit, and for duties on goods imported by him, wliich 
fums amounted to 712/. 

It appeared that the fums of money paid at different times by 

Mr, Michell to the plaintiff for and on account of thefc feversd 

F 127 1 tranfadions, amounted in the whole to 3000/. 

The affitneet ^ e aflignees under the commiffion finding thefe fums were 

bring an aaion paid by Mr. Michell after the a£t of bankruptcy Committed by 

againft Billon 

for fc much had and received to their ufe, and recovered a verdid agiinft him for 3000/. 

him^ 



'Bankrupt. 127 

Km, they brought their aftion againft die plaintiff for fuch mo- Bnx.ow ** 

ntj had and received to their ufe, and recovered a verdift againft Hyoi. 

him for that money. 

Mr. Billcn % the plaintiff here, but defendant at law, infifted BHhm\n^SiU cm 

on the trial to have the fum of 7 1 2/. allowed him as paid to and the trial to have 

for the bankrupt, and it not being allowed, is the reafon of his 7. xa/ - ^^^ 
v . • „*. |5n ° him as paid r» 

bringing this Dill. and for the 

There are two confederations. bankrupt, bat 

Firft, Whether the plaintiff is intitled to this allowance ? {£ n n * gfj* 

Secondly, If he is intitled, whether he has purfued a proper re- f cn t bill for i L 
medy, or whether this court is concluded by the verdift ? The piaiutiff ia- 

And tliefe queftions mull depend upon the nature of the dc- |j^ ^x^J^^ 
mand of the aflignees againft him, and the nature of the remedy and the verd& 
he has purfued. ^oTwnf"!^ 

As to die nature of the demand of the aflignees, which is Sufc Ith* 
founded upon tie relation of the aft of bankruptcy, it is as hard matter of con- 
acifcas any in the law, as this relation may go a great way back, [^! * a ^ >f **" 
and overreach all tranfaftions without regard to their being fair therefore a pro* 
or fraudulent. , P cr f ul y c ? f* 

It holds in fales of goods, and payment of money, and it over- rix&llouxt!* 
turns not only contracts, but afts upon record, and legal afts, 
as judgments and executions executed ; where thefe afts happen 
after the aft of bankruptcy committed. 

It is faid fi&ions of law {hall not enure to the prejudice of any 
body, but are invented to fupport rights, and to be furc that is the 
rule ; but this cafe is taken out of another general rule, which 
has been adhered to for the fake of publick utility ; viz. that it ift 
better a private mifchief fliould infue, than a general inconveni- 
ence: Lex citius vult tolerare privatum damnum^ quam publicum 
malum. 1 Inft. 15a. b. 

But fince trade has increafed, the mifchiefs and inconveni- 
encics have multiplied, and therefore the late aft of the 1 9 Geo. 2. 
was made 5 and this cafe is within the recital of that aft, and one 
of the principal cafes provided for by it, is the negotiation of bills 
©f exchange. 

And though the plaintiff may not bring himfelf ftriftly within 
the ad, yet he is within the meaning of it, and the court will go 
K far as it can in fupport of it. 

Secondly , As to the remedy purfued by the plaintiff. 

It is infilled by the aflignees, he ought not to have a remedy 
here againft them, for that they recovered at law by their own 
ftrcngth ; and, as he failed there, he ought not to be afliftcd here : 
fot it docs not appear in what fhape the fet-off was offered at the 
trial, and I am apt to believe it was only offered in mitigation of 
damages. 

I think, from the nature of the demand againft him, he is in- 
titled to have this allowance in fome fhape or other. 

ht appears new to me, to permit aflignees to maintain an 

action of indebitatus ajfumpfit for money paid by a bankrupt to. 

another perfon after a (caret aft of bankruptcy : I always thought 

iffignees were obliged to bring an aftion of tort, cither trover, 

1 or 



tit %mt*rupt 

Bitton ♦. & trcfpals, and the Lord Chief Juftice Hoh, farHr % and ka 
TBE * mmd were of that opinion ( i ). ' 

I remember Lord Chief Juftice Parker declared in a caufe 
Guildhall* the 4 Geo. I. that he knew no cafe where a man migl 
not maintain an affumpfit for money wrongfully taken from hio 
except two, viz. for money won at play, and for money paid by 
bankrupt bona fide to a creditor after an aft of bankruptcy cor 
mitred. And in cafes where trover has been brought by aflignc 
under a commiffion of bankruptcy, the courts have lean'd agair 
a drift conftruftion of the bankrupt afts, to the prejudice oi 
fair creditor. Vide 3 Lev. 58. 59, Rider v. Fowl on a Ipcci 
verdift. 

To raife an affumpfit, the affignees muft maintain either in f*t 
or by relation a contraft, and here the contract upon which tb 
affumpfit is maintained, is by the interpofition of the bankrupt 
and therefore I think he ought to be considered as the faftor 
the affignees -, and if they will take this method, and affirm the con 
traft done by the bankrupt, they muft take him as their faftor in al 
afts done fairly and without deceit. Wilfon v. Boulter. Raym. 

Upon the authority of that cafe, I think this a favourable aftio 
for the plaintiff to have fuch allowance, becaufe it makes the al 
(ignees affirm the contraft of the bankrupt, and am of opinioi 
that the verdift at law, which has not allowed it, is not conclufiv 
upon the plaintiff) becaufe k is a matter of contraft and of a< 
count, and confequently a proper fubjeft for the jurifdiftion c 
this court, and the plaintiff ought to be allowed, by the interpc 
fition of this court, fo much as in juftice he ought to have ; an 
I recommend it to Hie affignees to allow the fum of 712/. to tt 
plaintiff (2). 

(1) But the affignees may now bring an ment with Billon, who was thereby al 
a&ion of affumpfit or tort, but not both, lowed to dedult the whole of the 712 
Kitchen v. Campbell. 3#7 : /I 304. 2 Black. ' 2/. out of the monies recovered under ti: 
H 30. Huffy v. FideJ t i2i\JW. 324 /&//Q5. verdift. In purfuance of this agreemei 
S. C. Phillips v. Tbtmp/on 3 Lev. 1 91. his Lord (hip with the confeiu of th 

(2) His Lordihip adjourned the caufe parties, ordered, that Hanbury fhould a! 
in order that the parties might come to low Billon the Jjtzl.2 /. and difipiued th 
an accomodation; upon which Hanbury plaintiff's bill. Reg. Lib. A. 1749*/! 22; 
(the furviving aflignee) with the con lent See Ex parte Ockenden, pofi. 337. Ry*U\ 
of all the creditors entered into an agree- RfilUs y 1 Vef. $75*f*fi. 185. 

T&rnery the Richard/on and Gibbons, Affignees of Jlexatukr Wilfonl m 
t 4 th, 175*. a Bankrupt, — ■ J Pkintiffi 

Bradjhaw, Taylor, and Wiljon Defendants 



Cafe 72. 

Drawing and re- 
towing bills of 
exchange for 



A Trial in the court of King's Bench before a fpecial jury ft 
the county of Middlefix, upon the following iflucs out of th 
I^tuTaad court of chancery, direded by Lord Hardwicke. 

a continuation of -, • 

it U trafficking in exchange, and a trading which *iil Atkaainan liable to a to^&oarf fcafcnft 

though a loia cafes to tUbaatoft byfo doing. 

/•I 



Tanftrupt. 12$ 

!jf, If Wilfon was a trader or a banker within the meaning of Richaidioh 
the ads of parliament relating to bankrupts. T ' BlAD,HAW » 

ld/i, If he had committed any zGt of bankruptcy within the faid 
flatures. 

With regard to the firft it was proved, that Wilfon, who was 
agent to feveral regiments from the year 1745 to 1751, drew 
upon apt. fohnfon, who was likewife an agent in Dublin, by 
bills to the amount of 281, 000 /. and upwards, and that John/on 
redrew to the amount of 290, 000/. and upwards, on Wilfin, [ 129 J 
bat there was no commiiBon money allowed to either fide. 

It was proved in the caufe by Mr. Porter, Mr. Linch, Mr. 
Matbias, Mr. Teffier, and others, con fidcr able merchants in the 
city of London ) that drawing and redrawing bills of exchange, 
for fuch large fums, and a continuation of it, is a trafficking in 
exchange, and a trading, which in their apprehenfion would 
make a man liable to a commiflion of bankruptcy, though no 
coramiffion money had been allowed on either fide, and notwiths- 
tanding a lofs enfued by thefe tranfa&ions to the bankrupt. 

The evidence of Mr. Wilfon's being a banker, was, that he 

bpt a clerk who was in the nature of a cafhier, to receive and pay 

money, and that for feveral years together, officers and their 

widows, and other perfons, not belonging to regiments, paid 

■xmey into Wilforis hands, and the cafhiergave accountable notes 

fer the fame, and thefe perfons drew from time to time upon 

filfon for fuch fums, payable either to bearer or order, as they 

Aooght proper, but the books were not kept in the fame manner 

I as bankers do, and it appeared in proof, that if Wilfon received 

ranv large fum, he paid it into the (hop of his own bankers, 

[Meflrs. Drummonds, and from the year 1740, to 175 1, paid 

30, 000/. a month into the faid (hop, and that he only had in 

ealh by him about 3 or 400/. to anfwer any fmall drafts; but 

that for large ones he gave the perfons drafts upon Meflrs. 

Drummonds. 

The jury before they delivered their verdi&afked Lord Chief 
Juftice Lee, whether fuch drawing and redrawing as aforefaid, 
was in point of law a trading ? 

Lord Chief Juftice Lee faid, it was not fo much a point of law, 
at a fad to be determined by them on the ufage and opinion of 
merchants, and that if they paid any credit to the merchants who 
.had been examined, and were men of character, this was a 
[trading*, accordingly a vcrdift was given for the plaintiffs. The 
I jury on the firft iflue finding Wilfon a trader generally within the 
bankrupt acts : and on the fecond iflue finding him a bankrupt 
within the faid atts(i). 

(1) See the diftinftion between this upon the anfwer of the Chief Juftice Lee 
tife and that of Hankey v. Jonn, Cowp. to the qucilion put by the jury in the 
745* and the comments of Lord Mansfield former cafe. 

Vol. I. K 



12$ •Banftrtipt 

December the 
lift 175*. 

Part of s. c. E* P arte Marflial and others, 

poft 131.262. 
Cafe 73. ~\f[ R' Garway of JVorcefler drew a erent number ofbi 
JLVJl Payable to Vere and y^v//, upon Hutton, who had no 
number cf*biUs ^ C( ^ s °^ Garway s in his hands, but however accepted the bills ; 
payable to i'. the honour of the drawer. 

who^ad^ 11 ^' * Garway becomes a bankrupt, and Hattotu by means oft 
effcasofCT/sin S reat * um ^ he paid on account of fuch acceptance as before mc 
his hands, but tioned, becomes a bankrupt likewife. 
»cccpt?d them 

for the honour of the driwer. C. becomes a bankrupt, and H. by means of the great fums he paid 
"cott'itof iu:h acceptance, beco.ics bankrupt likewife 

^ 7 he M-. betters p.ove under both comnu Hi ons, and receive dividends, but not fufficientto pa> 21 
in the p ur.d. 

The cjjigneei of J*, pray to ftand in the place of the bill-holders/rc tanto, as they had received un 
H. s cornmiflion againft the eftate of Gar-way. 

[ '30 ] The bill-holders prove under both commiflion*, and recei 

dividends, but not fuflicient to poy 20/. in the pound: and 

April lad upon a former day of petitions, Marjhal^ tsY. the aff 

nees olHatton preferred a petition to Lord Chancellor , and pra\ 

to ftand in the place of the biil-holders pro taut j 9 as they h 

received under Hatton's com mi ffion agaiufl the eftate of Garuu 

HattoH) as was infilled by the petitioner's counfel, being to 

confidered as afurety for the debt, and Garway a principal ; ai 

Lord Chancellor at the former hearing made an order according!] 

but it being ftrongly objected by the counfel for Garway's cred 

^ * tors, that this would be charging Garway's eftate doubly, dircc* 

His Lordfliip ed the petition to ftand over ; and on its coming en again th 

Sou wle admit- ^^ his lordfliip ordered, that the petitioners, as aflignees of Ha 

tr<\ pro tantoy as ton y fliould ftand in the place of the bill-holders pro tatito, as Ha 

H.\ eftate had ton's eftate had paid on account of his acceptance of the faid bill 

ofhi^c^ta^ce k ut Should not be intitled to any dividend from Garway's eftal 

«f the faid bills, till the bill-holders had received a full fatisfaclion for their debt; 

an Tvide r nd eiVe and if the fur P lus of Garway's eftate, after the bill-holders we 

from G.^eftate, fully fatisfied, fliould not be fuflicient to anfwer what Hatt 

till the *;//- had paid as the acceptor of Garway's bills, then his Lordftiip d 

•rittjJ^r" clar ^d that nothing in this order fliould prejudice any rig 

fat'ufaclion for the petitioners might have by acTion againft the perfon of Ga 

their debti. wa y f or t } ie re fidue of their demand, mtw'tthftanding Garway / 

had his certificate \ for his Lordfliip faid, it feemed to him, as 

Hattotfs demand did not properly arife till after the iffuing oft 

commiiTion againft Garway ; becaufe, though there is an impli 

contract between drawer and acceptor, yet there is no breach < 

- the part of drawer till after his bankruptcy, and confequently H 

ton is not a creditor under the commiflion, becaufe hisdebt is fa 

fcquent to it ; nor does he fall under the defcription of ptrfonft 

the 7 Geo. 1. who may fue out commiftions, though their del 

are payable at a future day. There dtbitum in prtjetiti folvayh 



Ti5anfttupt. 130 

in fuiaro, but here it was contingent whether it would ever be a Ex part' •• 
debt, as Gariv.iy might not have failed ( 1 ). AISHAl§ 

The counfel for the petitioners mentioned the cafe ex parte 
Walton [a), Dec. 23d, 1743, in the matter of Win/more** bank- ^Ar.u 122. 
ruptcy, where, as he dated it, Lord Chancellor made an order, 
that the aflijnees under the commiflion again ft the acceptor, 
fliould come under the commiflion again ft Winfmore the drawer 
pro tanto, as the acceptor had paid on account of fuch bills, and 
to receive a dividend rateaSly with the reft of the creditors. 

Lord Chancellor faid, that the order alluded to in Winfmorc's 
bankruptcy was not as ftated, nor was it applicable to this cafe, 
but that fuppofing the two cafes to be fomething fnnilar, he 
thought the directions he had now given under the prefent • 

petition, were the jufticc of the cafe j aud therefore had ordered L I 3 I J 
accordingly, 

(l) Sec Export* Ryfvokh, 2 P. W. 89. Kettitr v. Rajnts, 1 Cook: 9 * B. Laws 250. 

Ex parte Marflial and others : In the Matter of Hatton a 7*"< the %lik ' 
Bankrupt. 1?S3 * 

Vide preceding 
Oafc 

TTfATKIN a merchant at Brjjlol had large dealings with Mr. q z c c - , 
** alderman Gar way of Worcefter, who had Hatton, now . funl 

a bankrupt, for his correfpondent in London, and it was agreed ^ i" T ° iC 
between Garway and Hatton, that the latter (hould anfwer all dealings with (7. 
drafts that Wathin fhould draw upon him on account of Gar- of *W£r, 

try T-i i*t wr r #1 who hid Ha! to fit 

*wj; Ivatkin draws accordingly on Hatton for 4000/. who ac- now a bankrupt, 
ccpts it, tho' he had no effects of Garivay's in his hands at the forrmcorref- 
timc : the payee of this draft, upon the acceptor's non-payment, ^ ndc jj ™£ 0Mm 
applies to the drawer who pays it. Wathin applied to be admit- agreed between 
ted a creditor under the commiflion againft Hatton, the acceptor c - an j* Hatt0 * 
of the drafts, and is admitted by the commiflioners. , (hould anfwer 

The aflignees of Hatton petition now againft this admiflion of all draft* 
Wathin, as Hatton had no effects of Garway's in his hands. ftoulTdraw 

Lord Chancellor : I will confider it firft as it ftands betweer> U p 0n him on ac- 
( Wathin and Hatton ; If payee receive the monev comprized in count ofC7. 
. the draft of Wathin, he may bring an action againft Hatton in ^J n ^ wi 
t the name of the payee, who will be confidered as a truftee ♦or up »n mtton for 
j' the drawer, or he may bring an acYion in his own name againlt 4°°° ': wh ° IC ~ 
fc Hatton, if he had effe&s of Wathin at the time of the acceptance ^ w'w^S • * 
i Efficient to anfwer the draft ; but if he had not effe&s, but o/G.'s h bit 
j only honoured the draft, fuch aclion cannot be maintained; ^"^'olfthe 
( or if in this cafe Hatton had paid it, inftead of being a debtor to acceptor's non- 
1 Wathin, he would have been indebted to Hatton pro tanto ; and fo payment, ap- 
it was determined in the Houfe of Lords, a writ of error from 2jj£,£ who 
the court of King's Bench, pays it. Catkin 

applies to be ad- 
mitted a creditor upon the commiflion agiinft Hattm. 
The agreement between Garway and Hatton puts the latter to all intents in the feme fituation as G. 
iinfclf, and therefore, them^b be bad no effect in bis bands at tbe time, he has by his agreement mads 
vafelr liable, and WMia hat a right to come in as a creditor under the commiflion againlt Hattm. 

K 2 But 



iji 'Bairttutpt 

Em part$ But confider it now as it (lands between Garway> Watlin a: 

Hatton : WalVin appears, at the time he drew on Hatton, 
have had effe&s in Gateway's hands of more value than t 
amount of this draft, and as there was fuch an agreement 
I have before mentioned between Garway and Hatton, the lat 
is to all intents and purpofes juft in the fame fituation as Garnx 
himfelf ; and therefore, though he had no efFefts in his hands 
the time, has by his agreement made himfelf liable. 

r ,- 2 ] The fame rule will hold therefore under a commiffion 

bankruptcy as in an a£Hon at law, and upon thefe circumftanc 
Watkin has a right to come in as a creditor under the commifli 
againft Hat ton > and therefore the petition of the affignees m 
be difmiffed. 



(L) Where Affignees will be charged with Interejl. 

CO** the tii, Ex parte Lane. 

174*- 

Vide under the Divi/ion, Rule as to Affignees* 

(M) Rule as to Partner/hip. 

After Hilary Beqfly v. Bca/ley. 

term, 17301 J * J J 

Vide under the Divifton> Joint and feparate Commiffion. 

A*guft the 6th, Ex parte Banks. 

1740. 

Vide under the Divifion, Rule as to Creditor s m 

iisrtb the 19th, £ x pane Voguel and others. 

1743- r * 

Cafe 75. A Separate commiffion had been taken out againft perfo 

J\^ who were formerly partners •, the petitioners being joi 

^ffiorScleT 1 " creditors pray by their petition, that the joint effc<Ss feized u 

out ag»inft per- der the feparate commiffion may be divided in the firft pla 

4>m & rn *£ir among the joint creditors. 

jrinT credit The Attorney General, counfel for the petitioners, infif! 
upon an appii- t h C y mu ft have fome way of fecuring the joint effe£b, that th 
cation to the nQt j^ imbeziled by the creditors under the feparate coj 

court are left at / * 

liberty, to bring miffion. . . . , 

their bill for any j^j Chancellor : I leave the petitioners at their liberty to bn 
tS^J*?' a bill for relief for any demand> their petition, or any other 1 

ITJinft the afligneea of the feparate eftate, who are direaed Co fell the whole effeft*, and depofit 
money in the bonk; hut to make no dividend tiU the fuit is determined * The joint creditors to piajte 1 
4cbts under the commU&eiiUl the anas tee without prejudice. 



TBanftrupt. 133 

ffiand on account of the partnerfhip, againft the aflignees of the Expartt 
feparate eftate, before the laft day of next Eajler term, Vocutt. 

And Idireft the aflignees under the feparate commiflion, to 
proceed to a fale of the whole effefts fcized under the commiflion, 
and to depofit the money arifmg from the fame in the bank in 
the name of the aflignees, but to make no dividend till the fuit is 
determined*, and in the mean time let the joint creditors be at 
liberty to come in under, the feparate commiflion, and prove their 
debts without prejudice ( I )• 

fl) Fide Ex parte Martin, z Bro. Cba. 198. Ex parte Hayward, ibid. 299. Ex 
Rep. 15. Ex parte Tate, 1 Cooke's B. Laws, parte Burnuby, ibid. 30 1. 



Ex parte Crifp, in the Matter of his Bankruptcy. ***& ** * d » 

IN 1742, the petitioner, Burnaby and Barbut f became co- ' Cafe 76. 
partners, and were jointly concerned in ere&ing an amphi- 
theatre at Ranelogh^ and in making and laying out gardens for ma^mJeatainft 
the entertainment of the public ; and the copartnedhip was to one partner 6f 

continue upon the foot of the faid undertaking for a certain term ?*F ee { or a i 6int 

r r y m- ■ i • debt though an 

ot years, yet lubiiitiiig, upon and under certain covenants, pro- a aion caunot he 

▼ifocs and agreements, contained in a certain deed or inftrument maintained 

duly executed by the petitioner, Burnaby and BarbuU The am- JjJou t ^Sn 

phitheatre being cre£ed, and the gardens laid out according to the the other two 

fcheme, the premifles were afterwards provided and furniflied P«to« 

with all things ufeful and neceflary to make the undertaking 

compleat, and on that account many large fums of money were 

laid out, and debts contrafted with the different workmen and 

tradefmen. 

Some difference afterwards arofe between the petitioner Bur- 
«flty, and Barbuij who endeavoured to difpoflfefs the petitioner of 
his eilate and intercft in the undertaking, and to get the manage- 
ment thereof wholly into their own hands 5 and in order thereto, 
a commiflion of bankruptcy, on the firft of Feb. 1 742, iflued 
2gainft the petitioner alone, upon the petition of William Perritt, 
whofe debt had begn contracted on account of the undertaking, 
and was due from the petitioner, Burnaby and Barbut jointly, and 
as partners, and not from the petitioner alone. 

By an order made the 18th of Feb. 174a, upon a former pe- 
tition, it was ordered that the commiflioners ihould execute a 
provifionai aflignment of the petitioner's eftate and effects, and 
that the parties mould proceed to a trial at law in the court of 
Common Pleas, in an a£Hon of trover to be brought by the pe- 
titioner againft the provifionai aflignee. 

On the 9th of June 1 743 ( 1 ), the action was tried before Lord 
Chief Juftice JVilles, when his Lordfliip declared that the peri- 

(l) Crifp v. Perrit, I Cooke's B. Laws, 18. S. C. 

K3 tinner 



i 3 3 , 'Bankrupt 



Ex part§ tioner had committed an act of bankruptcy ; but it appearing that 
Cms*. ^ c ^ e ^ t U p 0n wn i c h the commiflion was taken out was due from 
the partner (hip, his Lordfhip doubted whether the commiflion if- 
fued regularly, and dire&ed a verdid to be found for the petition- 
L T 34 J cr, fubjed to the opinion of the court of Common Pleas : and on 
die 5th of May 1744, after hearing counfel on the matter referr- 
ed, the court of Common Pleas pronounced judgment, and de- 
clared the commiflion iflued regularly (1). 

The commiflioners afterwards proceeded in the execution 
thereof, and feveral debts, amounting to 3065/. 19/. 11 d+\* 
were proved under the commiilion, and all of ihem, except 
47 /. 3 /. -4*/. were the debts due from the partnerfhip. 

Since the commiflion iflued, Burnaby and Barbut, by the per- 
ception of the profits of the undertaking, received much more 
than would fatisfy all the joint creditors, all of whom, fince pro- 
ving their debts under the commiilion, had received from Burna- 
by and Barbut either a fatisfa&ion, or undeniable fecurity for the 
fame. 

The petitioner offers to pay into the bank of England fuch a 
fum as the court (hall think proper, on being allowed a reason- 
able time for the doing thereof, in fatisfac"iion of the debts fo 
proved under the commiflion. 

And therefore prays that it may be referred to a matter to fee 
what the provifional, and other aflignees had received of the pe- 
titioner's joint and feparate eflate ; and how, and to whom, and 
for what the fame, or any part thereof, have been difpofed of and 
applied j and, after juft allowances made, that they might aflign 
to the petitioner fuch part of his eftate and effeds as fhould ap- 
pear to remain in their hands ; and that the mailer might alfo in- 
quire which of the creditors had received any fatisfa&ion or fe- 
curity," an^ from for the debts fo by them rcfpeclively 
proved under the commiflion: and that in cafe any of them -who-? 
had received Securities for their debts fhould cle£l to receive- fcttf— » 
fad ion out of the~mo*ricy he now offered to pay into "the b ank/ 
fuch fecurities might be afligned to the petitioner, or to perform-* 
whom he fhould appoint, in order to recover the money due 
thereon ; and that upon payment or making fatisfaclion to the 
feveral creditors, who had proved their debts under the commit- 
Con, the fame might be fuperfeded. 

Lord Chancellor: I do not blanfe Mr. Crifp the petitioner for 
not applying fooner to the court for a fuperfedeas^ becaufe by a 
former order, a trial with regard to the bankruptcy being dU 
reeled, it was neceflary that trial fhould be had firft. 

When this cafe came originally before me, I thought it a 
pretty new one ; a commiilion of bankruptcy taken out again ft 
one partner for a partnerfhip debt, without joining the other 
partners in the commiflion, and therefore dire&ed a trial of the 
bankruptcy before Lord Ch.'Juf. Willeu 

(l) See Ex partg Carut£$rs 9 1 Code's B. Law, 19, Ex parte Upton, ihid *©, 

Whatever 



*Banltrttpt. 134 

Wharcver doubts T might 'have before, it is now eftablifhed to *•* f crt * 
be law, on the unanimous opinion of the court of Common Pleas, c *'"« 
that a cemwfion of bankruptcy may iflue again!! one partner only 
for a joint debt ; though to be fure in a* action at Iaiv again ft cue 
farther, ii could not be maintained unlefs the other two are 
joined in it. 

The commiflioners have certified that this is a proper time to f 135 ] 
fupcrfede the comniiilion, and that the circumftances are like- 
vrife proper for doing it. 

But fuppofe the majority of creditors prefent at anv meeting Though a imj©- 
may have f.iid, Wc defire you will certify that the commiflion ^^^ 
ou^ht to be fuperfeded, and one creditor has declared he (hall be that - ommii*- 
abie to prove in a few days, and de fired a delay ; the court would fion ou o ni t0 be 
certainly in that cafe refufe to fupcrfede the commiflion, and meeting toAVa' 
give fuch creditor an opportunity of proving the debt, in the firft purpose, yn i# 
place, or orherwife the bankrupt may remove into a foreign ? n / r c , F , riJ ! torf ># 

r . r , ,. ,' ■' , . . h . l (hill be able 

couritry, and fuch creditors who were under any incapacity of to prove in 4 
pro. ing before, from particular circumftances lofe their debts. fcwdtys, do no 
In the prefent cafe Burnaby ar.d Barbut. the two other part- * erU ' y l* 1 ' vk ' 
Krs, futr^cit that they are creditors for a large fum, and intend^ fuperi^, till 
to prove their debts under the commiflion, and therefore oppofe ^kcitdhor 
the cornmifli.m's bejiy fuperfeded. riV^T™"* 

But admitting they are creditors they run no hazaid, for I do hi* debc. 
not fi ui Mr. Crifp has much more cfrc&s than his (hare in the 
pannerfhip, and they have the whole partnerfhip efFc&s in their 
tands, and tlierefore I lay no ftrefs upon their objediox* to the 
fuprrpdeaf. 

but at the fame time I do not think it right too direct, as the Where then is 
petitioner defires, that the fecuvities given by the other two 'P rmci r» ] and 
partners to the creditors who have proved debts under the com- t > p.rllortt]"^" 
mflion, (hould be afli^ned to the bankrupt . Indeed where th ere is <kb: f "he u mti- 
a principal and furcty. and furety pavs ofl jfe'd'rt'r. nr iq inmTEtt gj£ £ ,uvtan 



• jl, e , r - -. — i r- - — . .. .. •u«5iiimncof';he 

ave an afngnnTmt of the lccuntv, in order to enable him to fecu.ity, to en- 
o fctatn fatisfadlion for what he has paid over and above Iris ow n ablc hi ™ t0 ob - 
flure; but it will be extremely Hard it 1 ihcu!d order a fecufity * B J*j *f £ 
gGen by Burnabj and Bttt but (otely and fepamtely to the creditors paid above hU 
tor the payment of their debts, to be nfligned to Crifp, and there- °* n fl,arc - 
fore I will give fuch directions as will effectually anfwer the in- 
cm of all parties. 

His Lord (hip ordered that upon the petitioner's paying within 
one calendar month from the date hereof, to all the creditors 
who have already proved their debts under the laid commiflion, 
the whole of their refpe£tive debts fo proved by them under the 
commiffion, and the colts of the commiflion and of the proceed- 
ings at law, the commiflion be thereupon fuperfeded: and he al- 
fo ordered that the fevcral creditors of the petitioner, who have 
pored their debts under the commiflion, do afli^ri the feveral fe- 
rtilities that have been given to them by any of the partners, for 
their refpeefcive demands proved under the commiflion, to a truf- 
kcorrraftces to be appointed by the commiflioners, in trull to 
faurctothe petitioner, and any other of the partners, fo much ^ 

fcoocyas he or they have refpetTively paid or (hall pay towards the 

K 4 difcharge 



tj« 



Cusr. 



Dumber the 
»jd, 174a. 



bankrupt- 

charge of fuch debts, over and above their refpeftive juft portic 
tliereof •, and ordered that the affignecs under the com mi (Hon 
re-affign to the petitioner all his eftate and effe&s which hs 
been affigned to them, and that they come to an account befc 
the commiffioners, for the eftate and effects of the petitioner coi 
to their hands, and that they pay to the petitioner the balan 
which upon fuch account to be taken fhall appear to be remai 
ing in their hands. But if the petitioner (hall make default 
making the feveral payments, within the time before limited, 1 
Lordfhip in that cafe ordered that the commiffioners be at lib 
ty, and do thereafter proceed in the execution of the comix 
fion. 

Ex parte Bzuditr. 
Vide under the Divifion, Joint andfeparate Commiffion^ 



January tbi lit % 
1745. 



Eh parte Bond and Hill. 
Vide under the fame Divj/icn. 



*r 




H 

trade* 



Ex parte Titner. 

AT COCK, a filkman, entered into partnership v 
Francis, a dealer in coals, to be mutually partners in k 



January tbt 
loth, 1746. 

Cafe 77. 

H. a filkman, 
and F. a dealer 
in coals, are 
partners in both 

te ** Some years afterwards they agreed to diflblve the partner!! 

Jin ^f"*"^ an d at the time of the diflblution, upon the balancing of accoui 
partnership and Francis gives Haycock a releafe of all demands, and took u] 
F. giv>5 //. a him the payment of debts due from the coal trade, and Hcjt 
m^ld^k thc P a Y ment of the debts from the filk trade, and the 
upon him the fpe&ive de'ots were affigned accordingly. 

payment of the 

dcuL> due from thc coal trade, and H. the debts from the filk trade, and thc rcfpe&hre debts are affi 

accordingly. 

J7. diet, and a Haycock died, and foon after his death a commiffion of ba 

commiifion is J . n . 

taken out againft ruptcy was taken out againit rrancu, and by virtue of a v 
F. and the mef- rant of fcizure the meflcnger under the commiffion attempted 
fng g to r fci« m 5!e fcize thc effeds °* Haycock in the hands of his reprefentat 
effect of//. In who oppofed the meflengcr, and turned him out of poflcffioi 

the hands of his 

reprefenutive, is oppofed, and turned out of ptfafion. 

tiUontfS?- 1 *" A petition was preferred by the affignec of Francis, a 
plaining of the Paining of this force upon the meflcnger. 

force upon the J 

■effenger. 



TBaifettipt 137 

lord Chancellor was of opinion, that by virtue of the releafe Em fart* 
from Francis to Haycock^ the whole property of the filk trade from TlTN «- 
the diflblution of the partnerfhip veiled in Haycock, and that the 3j?£ //"S^ 
affignee could (land in no better light than Francis himfelf, who whole property 
had relinquiihed all his claim, and therefore that the goods of of l^f 1 ^**** 
Haycok ought not to have been feized at all under the commiflicn ^ c ^IL^ ^ 

againft Francis* F. ftanding in 

no better light 
tkan the bankrupt, the goods of H. ought not to have been feized under the commiffioo againft F. 

But though the taking of thefe goods by the mefTenger was il- 
legal, yet the turning him out of poiFeffion by force cannot be 
juftified, for the owner of the goods ought to have aflerted his right 
by a due courfe of law ; however, the evidence on the part of the 
petitioner was fo flight, that it does not by any means fupport the Petition difaif- 
charge, and therefore his Lordfhip difmifled the petition with fe 4 ***** «*»• 
coils. 

In the Matter of the Simpfons> Bankrupts. fift^st? 

JOHN Simp/on the elder, and Thomas Simp/on his coufin, were Cafe 78. 
partners for a fpecial purpofc. 

John the elder, Thomas^ and John the younger, were alfo 
partners, 

A commiflion was taken out againft John the elder and 
Thomas. 

John the elder afterwards died. 

A fecond commiflion was then taken out againft John the 
younger, and Thomas. 

Afterwards Thomas died. 

A feparate commiflion was now taken out againft John the 
pangcr. 

The prefent petition was prefented on behalf of the affignect 
under the fecond commiflion to fuperfede the feparate commif- 
fion, as feparate creditors may by order come in, and prove their 
debts under the former commiflion. 

Mr. Solicitor General for the petitioning creditor in the 
feparate commiflion, cited ex parte Rollinfon, 4th of February 
*735i to ftew, notwithftanding a joint commiflion is depend- 
ing, that feparate creditors might take out a feparate commit 
fioa. 

Tic cafe cited was as follows : Rollinfon was a bond creditor 
of if. and B. A joint commiflion was taken out againlt them, 
aid alfo two feparate commiflions ; Rollinfon proved his debt 
under the joint commiflion, and afterwards petitioned to be ad- 
fitted a creditor under each of the feparate commiflions. Lord 
Ta/ktf would not grant the petition, becaufe it would break in 
*pon the rule of equality amongft creditors under commiflions 
°f bankruptcy cftablifhed in this court, but gave the petitioner a 
fortnight to make his election, whether he would come under 
&e joint, or the feparate commiflion, and would not fuperfede the 
fepratc commiflion. 

Lord 



I3» 



'Bankrupt. 



In h- matter of 

th* Smpjlns. 

Forme where 
there w re fe ve- 
ra! par.ners, the 
cuftora was to 
take (/Uv feparate 
com.n. ilijns a- 
gainft each part- 
ner, as well a> a 
joint commif- 
fion; but th'i3 
being of late 
thought a very 
unreasonable 
pra&ice, andoc- 
cafioning great 
confufion with 
regard co bank- 
rupt's efie&s, 
has been dif- 
cou itenanced, 
and the court 
keep only one 
comm ifion on 
foot, and direct 
diitmdt accounts 
to be kept of the 
feveral eftatus. 



Lord Chancellor : Formerly, where there were feveral parfne*r« 
they ufed to take out fcparate commiffions againft each partnerr 
as well as a joint commiflion. 

This practice being of late thought a very unreafonable one, 
as occafioning great confuQon with regard to bankrupts' effects, 
has been discountenanced. The prefent cafe is, one furviving" 
partner of three perfons, the joint effects veft in him in la^v, and 
under this commiffion may be properly diftributed. 

A creditor by bond upon the partnerfhip, after a joint co m- 
miflton is depending, takes out a feparate commiflion againft 
John Simpfon the younger ; fo that now here are two commif- 
fions againft the fame perfon, which will create endlefs con- 
fufion, and feems to me to be only a ftruggle for the afli^nee- 
fhip and the clerklhip, for there is no doubt but this parti- 
cular creditor may have a fatisfaclion under the firft commif- 
fion. 

His Lordfhip therefore ordered the lr.ft commiflion to be fix- 
perfeded, and by confent of the aflignees the fird was fuperfeded 
likewife •, and the creditors in general were ordered to come to a 
new choice of aflignees under the fecond, the now only fubfift- 
ing commiflion. 

His Lordihip alfo gave directions that there fho'uld be diflinft 
accounts kept cf the feveral eflatis, and referved the difpofition 
of the efFecls for the confideration of the court. 



Where there is By thij opinion of Lord Chancellor, it fliould feem for the 

•joint commif- future, that where there is a joint commiflion depending, feparate 
non, feparate .. , , J r -rr i . 

creators ought creditors ought not to taice out a feparate commiflion, but apply 

not to take out for an order to be admitted to come in, and prove their debts 

Slickly uTbe unc ^ cr ^ c J omt commiflion, as being a means of faving an ex^ 

admitted to pence to the creditors. 

prove their debts 

under the joint, as being a means of faving expence to the creditors. 



N. B. His Lordfhip had formerly, upon an application of 
joint creditors to be admitted to prove their debts under a fepa- 
rate commiflion, ordered it provisionally, that they fliould be ad- 
mitted creditors, and aflent or dilTent to the bankrupt** certificate, 
becaufe the certificate otherwife would clear him of the debts of 
joint creditors as well as feparate (i). 

Vide ante 98 the cafe ex parte Baudier, December the 23d 1742, 
which feems to vary from the prefent cafe, 

bankrupt's certificate, becaufe it would otherwife clear him of the debts of joint credit 
feparate. 

(1 )But it feems now fettled, that z joint margin. Martin v. O'Hara, Cenvp. 814.. 1 

commiffion cannot be fupponed, while Sed vide Ex parte hardcafiU 1 Cooke's &* y 

a feparate one is fubfifting. Ex parte Law* 8. 
Proud/cot , poft* 253. l Cooke'* B. Laws in 



Upon application 
of joint creditors 
to be admitted 
to prove their 
debts under a 
feparatt commif- 
fion, his Lord- 
ship ordered it 
frovjfionuHjf 
that they fhould 
be admitted cre- 
ditors, and aflent 
or diiient to the 
ior>, as weU as 



"Bankrupt 13s 



(N) Rule as to Cofts 



Anon*. Mich. Term, 

1739- At die 



Vide under the Divifton, Rule as to AJJtgnees. 



Rolls. 



Ex parte Goodwin. Apd the 30th* 

1740. 

•afcr /A* Divjfton, Rule as to his Executor ', *r w&r/ £/ Zr art* 
himftlfm 

Ex parte Smith. . March die 31!* 

1742. 

n affidavit of fervice upon the affignee, who was peti- Cafe 79. 
led againft to be difplaced, in order to fwell up the Ifawliolepefi. 
r, the whole petition verbatim was recited in the affi- tipn is recited i» 

' r an affidavit of 

feivice, ihe 

' Chancel/or : I by no means like this practice, and it is court will make 
:tornies in the country are very apt to fall into; but if *^" t ° rn 7T^ 
ike a cuftom of it, I (ball, for the future, order the colls coft*out of hi* 
iffidavit to come out of their own pockets. «* Q pocket. 



Ex parte Whitchurch. A ** & e 'A 

r 1742. 

Vide under the Divifoti, Rule as to AJfignces. 

te Gulfton : In the Matter of William Gulfton a Bankrupt, f^**? *'**• 

i E iflue directed by Lord Chancellor to try the bankruptcy Cafe 80. 
f thepetitinoer, was accordingly tried before Lord Chief 
Lee at Guildhall, who certified that the jury have found * •P oft ' , 93* 
f no bankrupt, agreable to the judge's directions. Appli- * n i( [ ue . h ** 

J v 6 r^ in r r 1 i. -r b«n before di- 

was made on the part of Gulfton to fuperfede the commit- rea-d to try the 
,nd that Dale the petitioning creditor might pay the cofts bankruptcy of 
ity, as well as at law. iL*"^? > 

j hr it t «... t ni • 1 • r "Ml no bankrupt 

\L.kanceUor : 1 aw of opinion that colts here m this cafe, agreeable to the 
confequence of the verdicl at law, and that a creditor is judge's direc- 
tntoniy to take cut a commiffion againft a debtor, unlefs it fionofb^ltrapt- 
i a plain and exprefs aft of bankruptcy, efpecially when cyis proceeding 
ad a more naturalYemedy, for he might have proceeded f 1 ^""^^* 
: Gulfton in Barbadoes for his debt, as the law is open there ; co ft s are' given 
is is quite a different cafe from a common fuit in equity ti^re, it will 
, where it begins firft in this court, and is a fmgle pro- ff^p^a! 
g only; but taking out a commiffion of bankruptcy is a ings before thu 
ding at law in the firft inftance, and all that is done after- court. 
is confequential, and if cofts arc given at law, it willfol- 
: courfe in the proceedings before this court. 

2 His 



«4o TSaitfcrupt- 

ri E *£!l *** s kordfhip ordered, that the commiffion be fuperfeded, 



ITOH 



that a writ of fuperf cades do iflue for that purpofe, the expc 
whereof to be paid by Dale the creditor, who fued out the comr 
fion; and his Lordfliip further ordered, that it be referred to Ma 
Mcntagtte to tax the petitioner William Gulftcn his cods at I; 
and of the feveral applications to this court in this matter, wh 
coils, when taxed, George Dale the petitioning creditor > 
thereby directed to pay to the petitioner William Guljlon. 

Jmgufixh* loth, Anon' 

1754. Anon * 

Cafe 81. HT* H E queftion in this petition, whether the cods and chai 
Cofts accrued by -* accrue ^ by the proteiting bills after a commiffion of ba 
pcotcfting bills ruptcy iflhed, can be proved ? 

before a commif- Mr. Attorney-general for the bill creditors infiftcd, that 

be proved' 9 but* ^ c notes werc acc eptcd by the bankrupt, though protefted a 

no pan of the the commiflion ifiued, yet as the protefting was a coufeque 

ooftsarifenafter- f fa party's accepting not paying the bills, they may by relai 

be considered as one intire tranfadiion, and confequentiy the 

titioners were intitled to prove the cofts and charges thei 

under the commiflion. 

Lord Chancellor a Iked fome of the commiflioncrs who happe 
to be then prefent in court, whether, if a pcrfon has a vcrdift 
a debt, and is profecuting to a judgment, or has recovered dai 
ges in an a£Hon, and is going on to execute a writ of inqu 
but before either of them is compleated, a commiflion of ba 
ruptcy is taken out againft the defendant, the cofts and chai 
of fuch profecuting to a judgment, or fuch aflcflment of dams 
on a writ of inquiry, have been allowed to be proved und< 
• commiflion. 

The court being informed, that it was the con (I ant pra£ 
of commiflioners to refufe fuch cofts being proved ( 1 ) his Ix 
fliip mnde the following order, that the tofts of the prot 
arifen before the commiflion fliould be proved by the petition 
but no part of the cofts arifen afterwards (2). 

(l) Centra Aylett r. Harford, 2 Black. Simffon. 3 Bro. Cba. Rep. 46. 
1317. BUndforJ v. Foote Coxop. 138. Ex (2) So Ex parte Mure, 2 Bro. C 

parte Talbot, 4 Burr. t\\$.Langford v. Rep. 597. 
Ellis, I Cooke* j B. Law 227. Ex parte 



35ftttfctttpt' 141 



CotiflrutHon of the repealing Clauje in the ipth of S$ueen 
Anne. 

Burchall : In the Matter of Robert Burchall a Bank- I7 ^ a# e **• 

rupt. ' » 

petitioner was bred a Money Scrivener, and had ufed Cafe 82* 
: trade or profeflion of a Money Scrivener for ten years, The ftatute of 
preferred a petition, by way of caveat, and prayed to ^f loth °* *** 
before a commiflion of bankruptcy iflued againft him, ^l only that 
that as a Scrivener he was not liable to be a bankrupt ; part of the fta- 
lough by the ftatute of 21 Jac. l. cap. 19. a Scrivener 2*°^" 
ided in the defcription of a bankrupt, yet this defcrip- WD jch coiifti- 
ig fome others was repealed by theftatute of the 10 Ann. tutesa bankrupt, 
rhich was not a temporary, but an abfolute repeal, nor fS^^ 
>y any fubfequent a£t. trade oroccupa- 

aufe is as follows : tionof theperfo* 

rreas by an a& made in the 21 Jac. 1. it is amongft Se'eommiffita 
lings enacted, That all and every perfon andperfons, iflUes. 
r that (hould ufe the trade of merchandize by way of 
ing, &c. in grofs, or by retail, or feeking his or her 
y buying and felling, or thatjbould ufe the trade and pro- 
" a Scrivener, receiving other mens monies or eflate into his 
cufody, who at any time after the end of the faid feflion 
anient, being indebted to any perfon or perfons in the 
100/. or more, {hould not pay or otherwife compound 
fame within fix months next after the fame {hould grow 
id the debtor be arreiled for the fame, or within fix 
after an original writ fued out to recover the faid debt, 
ice thereof given unto him, or left in writing, &c. or 
rrefted for the fum of one hundred pounds or more of 
>ts fhould, at any time after fuch arreft, procure his 
me nt by putting in common or hired bail, (hould be 
ed and adjudged a bankrupt to all intents and purpo- 
d in the cafes of arreft or getting forth by common 
1 bail from the time of his or her faid firft arreft : and 
j it is found by experience, that many and great mif- 
ind inconveniencies have happened, especially of late, 
and credit in general, by reafon of the faid defcrip- 
' a bankrupt : for remedy thereof for the future, be it en- 
That the faid aft, and alfo all and every other a£k 
:s of parliament whatfocver, fo far as they relate to 
i defcriptions of a bankrupt, be repealed and made 
id that no perfons within the faid defcriptions, or any 
1, (hall for or by reafon of the fame be taken and £ 142 J 
d to be within the ftatute or ftatutes of bankrupt what- 

lancellor: My doubt is, whether the loth of Queen 
ided any more than to repeal fome part of the itatute 
\ I. which conilitutes an a 61 of bankruptcy; and not 
3 the 



«4* Xanfcrupt. 

Ex [em t |, c (Jefcrlption of the trade, or occupation, of the perfon againfl 
whom a com million i flues. 

Mr. Brown the counfel frr the petitioner infilled, that tin 
ftatute of Queen Ann repeals the additional defcription of a trade 
in the 2 1 Jac. 1 . which is not in the precedent acts, and tha 
the defcription of a Scrivener is in this act only. 

Now all the bankrupt ads have the defcription of ufing th 
trade of merchandize, and getting his living by buying and felling 
and if Mr. Brown's confiruction (hould prevail, the defcriptioi 
of a bankrupt, by the expreffion of buying and felling, is as mud 
repealed as the other. 

The ftatute of the 21 Jac. 1. has fuperadded a Scrivener^ an<| 
this is merely an addition to the quality of the trade or profef 
of the perfon who fliall be a bankrupt ; one of the defcriptii 
to conilitute a bankruptcy under this act, is fuing out an origii 
writ, &c. another an arrcft, and procuring common or 
bail, tsV. thefe being found inconvenient, gave rife to the cla 
of the 10th of Queen Ann. 

Confuler how much is recited by this ftatute, not the wholi 
defcription of a bankrupt, or the general or common qualifies 
tions of the perfon of a bankrupt, or his buying and felling, Wfl 
if fuch a confiruction was right as has been contended, then al 
the other acts of parliament would be repealed. 

It is only particular acls of bankruptcy which are made voUj 
and not the qualification of the perfon \ and I have no doufc 
myfelf, but the confiruction I have Dut upon this repealiqj 
ftatute, is the proper and only fafc conlhuction. 

His Lordftiip ordered, that the petitioning creditor* be at B 

berty to fuc out a commiflion of bankruptcy againft BurchaH 

and in cafe the major part of the commifiioners fhould thereol 

declare him to be a bankrupt within the intent and meaning 

of the feveral itatutcs concerning bankrupts, then he directs 

the commillioners to execute a provifional aflignment of But 

• chalFs eftate and effects, to an aflignee appointed by them up 

der the commiflion, and alfo directed an iflue to try whethc 

he was a bankrupt within the true intent and meaning of th 

feveral ads concerning bankrupts, at or before the hTuing fl 

the commiflion, the petitioning creditor to be the plaintiff 

and the iflues to be tried the next term before Lord Chief Juftkq 

miles. . .' 

ASertvener\% The Chancellor inclined to think that a Scrivener is implied^ 

iThcw^L the following claufe of the 5 Geo. 2. " And whereas perfoflj 

ken, brokers, and " dealing as bankers, brokers, and factors, are frequently it* 

faBart, in the cc trufted with great fums of money, and with goods and effect 

5 Geo* i.e. 30. " °f vcr y g rcat ™hje belonging to other perfons 5 It is hercbj 

/ 39. and prti- "further enacted, That fuch bankers, brokers, and factqo 

tjoncr being one « flia |j b ami are hereby declared to be, fubjea and liable ft 

the court o.dered ,. ,,, rt ; , • i i ., -^ 

the commiifion- " this and other the ftatutes made concerning bankrupts." fifl 

en (hotild o.a- 

cecd in the execution of the commiflion* 

U 



•Ban&rupt.' 143 

his Lordfhip did not give a pofitlve opinion as to this point, and Exf*rt§ 
ordered all further dire&ions to be adjourned over till the next u * c **"* 
day of petitions. 

The next day his Lordfhip, upon confidering the claufe, 
declared he' was clearly of opinion, a Scrivener was within 
the meaning thereof, and comprehended in the words bankers f 
brokers, and fatlors, and therefore directed fo much of the order 
as related to the iflue for trying the bankruptcy, to be ftruck 
out. 

Upon the 8th of May 1742, there was a petition ex parte 
Burchall and Tribe when his Lordfhip ordered, that the cotnmijfion- 
ers Jbould proceed in the execution of the commijjion , and the other 
petitioner Thomas Tribe being prefent in court, that had Burclwll 
< in execution at his fuit, and acquainting his Lordihip, that he 
t. now elected to feek relief for his debt under the commiflion 
\ againft Burchall, and being alfo the petitioning creditor, his 
\ Lordfhip ordered Tribe forthwith to difcharge Burchall out of the 
, Marfhalfea. 

(P) Rule as to Dividends. 

P . . t - OBober the txi, 

hx parte Lane. I74X# 

t Fide under the Divi/ion, Rule as to AJftgnees being charged with 

Interejl. 



Ex parte Kirk. flflafcrthe x6th, 

"745* 

Vide under the Divifion 9 Drawers and Indzrfers of Bills t &c. 



Ex parte Stiles and Pickart. February tht ad, 

1748. 

Vide under the Divijion, Rule as to Allowance to Bankrupts. 

► 

(Q) Commiffion fuperfeded. C »44 3 

Ex parte Goodwin. g^* 8 *>*' 

Vide under the Divjfion, Rule as to his Executor , or where be is 

one himfelf. 

Ex parte Gulfton. ff Jn " ,r J' ,J,e *'• 

yide under theDivifton, Rule as to Cojts. 

Ex parte Crifp. ^ *■ **' 

Vide under the Divifion, Rule as to Partnership, ] 



144 ftmttupt. 

D*tmkr the i+f+^Z ?«*&■ £ x parte Gavter. 

Cafe 87 TVyF Gayter was the petitioning creditor in a commiff 
. XVJL bankruptcy againft A. but not being able to prov< 

Onfa perfcdinga bankrupt at die time the commiflion ifltied, it was fuperfedec 

commiflion, the t r r ' r 

court may either on a former day of petitions, Lord Chancellory upon the at 

4irea an enquiry tion of A. made an order for afligning the bond to A. ghi 

rf^Jraate" the petitioning creditor to his Lordftiip at the time of fuii 

fuftained by the the commiflion. 

baakrttpt i^L ^ e P rc ^ cnt application is to difcharge that order, or a 

j£«fMupon an to ftifpend any adion upon the bond, till the damages fufi 

iOtieatlaw»and y by A. were inquired into. 

after damage, arc The con f lc icration of the plaintiff's debt on which he fue 

fettled, may, for . .— - r ,. 

the better reco- tne commiflion, was of a very extraordinary nature, 25 /« 
very thereof, being charged for money pretended to be advanced, and i 
^WenoY^petU* guineas for a premium, and other exorbitancies. 
tioning creditor Lord Chancellor faid it was in the breaft of the court, 
tobe aligned to tne bankruptcy was a doubtful cafe, and the commiflion 
10 upC * feded, either to dire£l an inquiry before a matter of the da 
fuftained by the bankrupt, or a quantum damntficatus up 
iflue at law, and after the damages are fettled, the court 1 
L MS J for the better recovery thereof order fuch bond to be afli 
but the prefent cafe was attended with fuch flagrant circur 
ces, that he would not by a previous enquiry into the da 
fuftained by A. prevent him from feeking an immediate fa 
tion, and therefore difmifled the petition (1). 

(l) See Chapman v. Picker/gill, 2 Wilf. 145. Brown v. Chapman, 3 Burr. 
. JL Black. 427. S.C. 

27<il '* ' ^ X P arU Leaverland, 

^** Cafe 84. rip HE petitioner was a bankrupt in 1724* divided upc 
s^*^^ After two ^j. J_ dividends fix (hillings in the pound, had his certific 
^^•;4endi the credi- 1 728, and on paying the creditors two (hillings and fix 
^ bukra^aii more * n l ^ c P oun( *> ^ C 7 ty ^ cc< ^ ^leafed him of all furth< 
7Z lbrth™ P de. mands. 

xnandi, he pcti- A petition by the bankrupt to fuperfede commiflion, : 
fc^Ae^ewn- there are other debts due to the cftate not got in by the afli 
miffion, and for he prays that he may be impowered to colleft them in. 
! ibe ^y tocol, «^ Lord Chancellor faid it was imprudently prayed by the 
duetothetftate. t * oncr > for fuperfeding the commiflion will intirely defeat tl 
The bankrupt tificate, and therefore varied his order from the prayer 
admitted to ft and pet i t i on b y directing that he (hould (land in the place < 

in the place of l ~ ' * , ° . , r . . . . r . 

♦h^-ffip^ig, allignces to get in the remainder of the debts, on giving a j 
C^ajPf^^toinnity to the aflignecs, that they may not be called 
~" it for fuch money fo received ; but would not fup 

mmiflion for the fake of the bankrupt. 

ly defeat bia certificate. 



7/. 




'Banfcttipt 145 



Ex barU Defanthuns. J u "* the aift, 

1753. 

* L the creditors, but two, under a commiffion againft Cafe 8c. 
?enton y petition to fuperfijde it, upon a fuggeftion that 

t of the petitioning creditor was not contraded till after a^lfb^ 1 ^ 
ikruptcy committed. ruptcy has been 

commiflion was taken out in 1751, and there was no proceeded upon 
e that the petitioning creditor's debt was not a juft one, manner, and all 
7/0/1 therefore was declared a bankrupt by the commif- the creditors 

The commiflion was proceeded upon in the ufual j^** ^ ul A fccd 
, all the creditors acquiefced in it, and the whole was whole compieat- 
itly finiihed. h fini&ed, lb* 

adt of bankruptcy pretended to be committed was a fe- WrfedeU ' 
e in 1750, a denying himfelf when creditors called upon tho' theacVof 
icugh at home : the perfons who afked for him were ^^niptcycom* 

number, one was paid afterwards the very day he called, ^ c p C ationing 
:r the next day, the third the beginning of September^ creditor** debt 

not call till the latter end of the Attguji before. S^ubtrU 1L* 

f one of the perfons traded with him as before, and what 
tiore material, Pent on appeared for months together as r , * i 
y as before, and from the nature of his employment L ^ J 
>re vifible than ordinary, becaufe he kept a garden and 
f entertainment, after the manner of VauxhalL 
petitioner had a judgment againft the bankrupt upon a 

• goods fold. 

bankrupt, between June 1750 and Attguji 175 1, con- » 
a new debt for wine with the petitioning creditor; he 
>k out execution, and entered upon the garden, (Jfr. but 
hIs taken in execution were not fufficient to pay him 
/. 

October 17? 1, a commiflion of bankruptcy was taken out 
Pcntotiy and the petitioner proved his remaining debt of 
under it. 

afhgnees brought an a&ion againft the petitioner to re- 
ack the goods taken in execution, and upon the evi- 
)l one Rofty Pen ton appearing to have committed an a£t 
ruptcy before the petitioning creditor's debt was contraft- 
rould have defeated the commiflion itfelf of courfe, and 
miffs therefore chofe to fubmit to a nonfuit. 
Chancellor : This feems to be a contrivance from the be- 
to the end to exclude fome creditors, whofe debts were 
ted after an aft of bankruptcy committed j and as it 
the plaintiffs' own brcaft whether they would fubmit to a 
or not, this is not a fufficient determination of the bank- 
and therefore I will not fuperfede the commiflion, 
ly when the a& of bankruptcy pretended to be commit- 
ge the petitioning creditor's debt arofe, is of fuch a 
1 nature* 



146 bankrupt. 

#g? *' ,4th ' E * P*** Sydebotham. 

Cafe 86. T N April laft a commiffion of bankruptcy iflued againft 

A commiffion JL titioncr, and he was declared a bankrupt; but at the 

fuperfeded, the lifting of the commiffion, and of preferring this p«tit 

tri^Jkirfint. was an in ^ znt un der the age of 2 1 years, and therefore 

by his counfel, that he is not to be deemed a bankrupt, 

the true meaning of the ftatutes in force againft bankrup 

that for this reafon the commiffion ought to be fuperfedc 

that a writ df fuperfedeas mould be dire&ed for that pui 

the expence of Alice Williamfon % the creditor on whofc ] 

the commiffion iflued. 

Lord Chancellor : The petition mult be allowed, for n 
(landing Lord .Macclesfield held in the cafe of one Whit fa 
an infant might be a bankrupt, yet it has been determine! 
wife fince. 

His Lordlhip ordered that the commiffion be fuperfedc 
that a writ of Juperftdeas mould iffue for that purpofe (i), 

( l) Rex v. Cole, I Ld. Raym. 443. 1 2 Mod. 243. Bull. N. P. 38. Ex parte 
poJf.lQL 

[ 147 ] 
A^ithe 3d, Ex partf Hylliaid. 

% Vtz. 407. pi. 

j 30. s. c. A Petition to fuperfevlc the commiffion on a fuggefti 

Cafe 87. Jjl Mr. Alfworth's debt was not of fuch a nature, as 
A. treated with him under the bankrupt a&s to fue out a commiffion. I 
a^iinft whom'a worth treated with the petitioner for the purchafe of the 
commiffion of of redemption of his eftate, which was in mortgage to 
|" nk ™P"T hath pi e M % p oUr hundred pounds was the price fettled for d 
the purchafe 0? chafe, articles were figned, and Mr. Alfwottb paid 1 
' the equity of 251/. I J. to clear off the mortgage, and was to pay hire 
hii^atT hf morc on ^ 1C cxecut ^ on °f ^ ie «onvcyanccs. 

mortgage to F. 

400/. agreed for the purchafe, articles figned, and A. pays 251 /. I j. to clear off the mortgage 

to pay 150/. more on the execution of conveyances. 

On petitioner's Hylliard refufed to complete the purchafe, or to pay 

refufing to com- „^' 0%€9m 

pieauthepur- mortgage. 

chafe, or pay the On this Mr. Alfwerth brought an action for 251 
mortgage, A. againft Hylliard, who was carried to gaol, where he Is 
aSonagamft months; and thereupon Mr. Alfivorth takes out a cbm 
the petitioner, of bankruptcyi and Hylliard is declared a bankrupt on t 
3L m £?2 <> f bankruptcy. 

lay two months, 

and upon this declared a bankrupt. 

Petitioner ap- Mr, Evans for the petitioner infilled, that this was not 
perfedTthe **' ^ c ^ as * 8 w * l hiu ^ c meaning of the bankrupt a£b. 
commiffion, on That an indebitatus ajfumpfu could not be maintained, 
• fuggeftion %t6l. was a breach of truft only, and not a debt. 

that^Ts debt it J n 

not of fuch a 
Mature isJatidct turn to fue cut • coMuftoa* 

Mr* 



33anfcrupr. 147 

Mr. Ctari 9 who was counfcl on the other fide, infifted it E * W 
was a debt, and money had and received to the bankrupt's ufe, m***»* 
and an a&ion therefore maintainable as for his debt. 

Mr. Evans in the reply urged, that there was no pretence 
that the 150/. or one penny thereof was ever tendered to //>//- 
itrd, but was told that he muft either repay the 25 1 /. 1 s. or go 
to gaol. 

No one creditor appeared under the commiflion; by that 
means Mr. Alfworth has, by virtue of chufing himfelf affignee, 
got into his pofleflkm all HyUuircTs efie&s, although 'tis fworn 
be does not owe any perfon befides a farthing. 

Lord Chancellor : I doubt extremely whether a commiflion Hi* Lord/hip 
could be taken out on fuch a contrail, for the remedy fhould doubted whether 
hate been a bill for performance of the contrail, and no aftion ^^con^ition' 
could in ftri&nefs of law be maintained. on fuch a con* 

trad, for the 
itaedy ought to have Veen a bill for performance of the contract, and no action could be maintained} 
tut (aid, if it flood limply on thit, he would not have fuperfeded the commiflion, but left the bankrupt 
to try the bankruptcy at law. But at A* hat, finee the ifluing of the commiroon, taken an affigament of 
the aortgage, he would not fuffer him to proceed in the commiflion 5 for, as ftanding in. the place of the 
Mortgagee, he mar hold till redeemed, andlikewife compel a performance of the contrail, or petitioner,. 
Hitmnd the 251/. 11. 

But if it ftood (imply upon this footing I (hould not have fu- £14'] 
perfected the commiflion, but left the bankrupt to an aftion at 
hw to try the bankruptcy. 

L But as it comes out now that Mr. Alfworth has fince the iffu- 
agof the commiflion taken an aflignmeht of this very mortgage, 
|I will not fuffer the commiflion to go on ; for, as ftanding in die 
.fbceof the mortgagee, he may hold till redeemed, and like- 
'tile compel a performance of the contraft, or Hylliard to re> 
fad the 251/. is. 

The receipt given by Hylliard, is nothing but an acknow- 
ledgement of receiving 25 i /. 1/. in part of the purchafe money. 
No a&ion in this cafe could be maintained, and therefore the 
toy foundation for the commiflion failed; and Mr. Alfworth 
lot, by taking an aflignment of the mortgage, got the fecurity of 
At mortgage for the money he* has paid. 

The affidavits on both fides fwear, that the petitioning creditor 
tfiid, either pay me back the money, or. convey to me the equity 
of redemption, and not a word of the petitioning creditor's of- 
fering to pay the i$o/. the remainder of the purchafe money. 

The commiflion therefore muft be fuperfeded, and the pe- 
titioning creditor pay the cofts ; for any expreflions otHylliarfPs 
that he was able to live in gaol, or any where elfe, and fuch like, 
proceeded from this ill ufuage, and will not forfeit his cofts (1 ). 

(1) See Medlicot's cafe % Stra. 899. Ex f arte Lee, I P. W. 7^. 



La 



14? 



Wuifctnpt. 



Jvtu the aid, 



(R) Rule as to Bankrupt's Attendance on Aflignees. 
Ex parte Turner, 



Cafe 88. 

The attendance 



THE aflignee under a commiflion of bankruptcy 
tice iu writing to the bankrupt to attend him in 
oTa bankrupt on "plain feveral matters relating to ins cftate after the 
theaffignecito were expired (during which time, by the 5 th of the 
■satinet * *" ng » ** c i$ to bc frcc fron \ aU arr efts, ^cftraints or ii 



accounts of hit 
cftate, feems to 
be con&ned by 
the 5th of the 

Scfent king to 
c 4* days, or 
the enlarged 
time at moft; 



court will order 
him to attend, 
notwithftanding 
any rifque he 
{nay ran from 
his creditors at 
large. 

£•'49 ] 



ment), and before the certificate was figned. 

The bankrupt would not attend upon any other ter 
(igning his certificate, and the application to the court is 
upon this, that the bankrupt had refuicd to attend, 
to the a£k of parliament made in the 5 th of the prefent 

9 Lord Chancellor: Notwithftanding the 5th of the 

hitif theaJEgn- king has thefe general words, " That all and every fu< 
takejfor th^cre- " ru P* or bankrupts, not ,n P"fon or cuftody, (hall at 
diton under the " after fuch furrender as aforefiid be at liberty, and i* 
eommjfljon, that « hereby required to attend fuch aflignee or afligne 
•tfreft^hf^the " every reafonable notice in writing for that purpofe, j 
4< fuch aflignee or aflignees unto fuch bankrupts, or left 
" her, or them, at his, # her, or their houfe or place c 
" in order to aflift, and (hall aflift fuch aflignee or aflig 
u making out the accounts of the faid bankrupt's eftate 
t€ fe&s." Yet the fubfequent claufe (which is in thef< 
€t That all and every bankrupt or bankrupts having furn 
€C (hall at all feafonable times before the expiration of the * 
n or fuch furtlier time as fliall be allowed to fuch bankr 
€€ finifli their examination, be at liberty to infpecfc their bo( 
€€ in prefence of fuch aflignee or aflignees, or fome perf< 
ff appointed by fuch aflignee or aflignees for that purp< 
" to take and bring with him, for his afliftance, fuch pe 
" he (hall think fit, not exceeding two perfons at any 01 
"and to make out fuch extta&s and copies from them 
" (hall think fit, the better to enable him to make a full: 
" difcovery and difclofure of his eftate and effects \ and 
44 thereto die faid bankrupt or bankrupts fliall be free 
44 arrefts, reftraint, or imprifonmeht of any of his, her, 
44 creditors in coming to furrender, and from the actual 
<c der of fuch bankrupt to the commiflioners, for and du 
44 faid forty two days, or fuch further time asfhall bc allotua 
"bankrupt or bankrupts, for fiwjbing his examination") f« 
confine it to the 42 days, or the enlarged time at mc 
therefore the bankrupt's protection from arrefts, &c. can 
no further. 

The Chancellor alked the petitioner's counfel, if then 
would corrfent to indemnify the bankrupt from arrefts, 
fefufing to do it, his Lordfhip propofed that he as ; 
ihouM only undertake for the creditors who have fough 
under die commiflion, tlut they would not arrcft him, 



Xanfctttpt. 149 

fo, he would order the bankrupt to attend, for he faid, he (hould ** A»*» 



Tuikh. 



not pay any regard to the danger the bankrupt might run, from 

bis creditors at large. 

This petition, at the requeft of the petitioner, was ordered to 
Handover till the next day of. petitions, that he may endeavour, 
m the mean time, to get the reit of the creditors under the 
commiflion, to confent to thefe terms. 

Upon the whole, Lord Chancellor faid, That the claufes in 
the a£t of parliament, relating to this matter, are very darkly 
and obfeurely penned, arifing chiefly from the words forty tiv* 
Jaji being thrown into the latter claufe. 

(S) Rule as to an jlpprentice under a CommjJ/ton of Bankruptcy. 

Ex part, Szndb r . - Sm*' 

THE petitioner, on the 10th of January I744 f was put Cafe 89. 
apprentice to Ward a Bookfeller at Tori, and the fum of a„ apprentice 
eighty pounds was given with the petitioner as an apprentice whew his mailer 
•forfcven years. In July following a commiflion of bankrupt J^^^^ 
Vas taken out againft Ward^ and being declared a bankrupt, af- in as a creditor 
Jgnetrs were chofen who fell off" the bankrupt's effedb, and he on, X °P°° *ke 
\ now the fupcrvifor of the prefs to the purchafer, and become [ft^^Saing* 
incapable of performing his part of the contract, nor is the peti- for the time be 
(loner able to raife any money to put him out apprentice to {j**^* ** 
another mailer, and the commiflion being a recent one, probably 
fo dividend may be made in a year, or year and half \ fo that [ # I50 ] 
il this time will be loft to the petitioner. >£*■££ Jb/*df- 

Upon thefe circumftances the petitioner prayed, that on de- /* ^T / 
Aifting 10/. out of the 80/. for his board with the bankrupt^ ^/ 9 - / ^ /r ' t 
Airing the fix months he lived with him, that the aflignecs —'zZp'S 
might be ordered to pay him the fum of 70 /. out of the effe&s f-mj^^" * "j* 
of the bankrupt already come to their hands, and not oblige him./, ^^r^ ^ • ^ 

to prove it as a debt under the commiflion. * ' 

lard Chancellor was doubtful at firft, and feemed inclined to ^5***, * <^/££^ 
pant the petition, but upon ordering the fecretary of bankrupts ' £r&y+t S~94 
to fcarch for precedents, and two being produced in Lord r^>^ 

Chancellor Kings time, and two in Lord Chancellor Ti/^s,^^^^^'^ 
*here they directed an apprentice (hould come in as a creditor /j^^r*:-/!?* 

^Uly (after deducing for the time he lived with the bankrupt) — 

**pon the remaining fum, his Lord(hip was pleafcd to make the 
feme order, and that the petitioner (hould be admitted a creditor 
fcr 70/. only (1). 

(1) Barvoell v. Ward, poft. 26 1 . So if a creditor under a commiflion againft him, 
* father receives the money and earnings Ex parte Macklin, 2 Vef, 675. 
Of a child, fuch child may be admitted as 



i^o ^fanfctupf' 



s (T) J2w// as to difcounting of Notes. 

Jum the 4th, Ex parte Thompfon. 

1746. 

Vide under the Divi/ion, Rule as to Drawers and Indorjors of Bilk 
of Exchange. 

JuguJI die 13th, Ex parte Marlar, and others. 

i; 4 6. 

Cafe go. nr^ H E petitioners being pofiefied of feveral promiflbry notes 
A under the hand of Thomas Setcole^ payable to William 
tilwlnomorefbr Dover or or**r 6 months after date, and indorfed by him to the 
the difcount of petitioners, amounting together to the fum of 975/. 17/. oi 
notes thanatthe w j 1 j c j 1 j)^ r difcounted with the petitioners, and received the 
ttra*m.tiu\\ ' full value, after deducing 5 per cent, for the difcount. On the 
prove the whole 1 8di of April 1745 a commiflion of bankruptcy *iflued againft 
SST^^f ' thc faid Thomas Settle, and he was found a bankrupt, and Marlar 
comrr'iffion of attended at Guildhall, in order to prove the faid debt upon the 
^nknipt againft f cve ral notes, but having received the fum of 11 /. 5/. )*</. 
<ro*bei^oMiged f° r tnc difcount, the commiffioners obliged him to deduft thc 
to dedua what fame out of the fum of 957 /. 17/. o d. and the commiffioners 
be had .Reived aIfo rc f u f Cc j to i cl t h e petitioner prove the fum of 8 /• 6 /. 1 d.\. 

of the indorlor , . f - r * m r # 

for the difcount. being the lntereft of thc laid reipective notes, when they rc- 

- # - fpeftively became due fince the ifluing of the faid commiflion; 

* 'J? * "* ana * therefore the petitioners pray, that they may be admitted ere- 

V++1+** v> y^As'^ ditors for the faid feveral fums of 1 1 /• 5 /• 10 d. and 8 /. 6 s. 1 L 

fc. *#****- , /> The counfel for Marlar infilled the commiffioners ought to 

' have admitted him in both thefe refpe&s, for the whole money 

contained in the notes, and likewife to be allowed intereft on the 

notes. 

Lord Chancellor : I am of opinion that the petitioner is int'idcd 

to the firft part of his petition, as he fwears he took no more 

for the difcount of the notes, than at the rate of 5 per cent, per 

aim. and ordered accordingly. 

The rule effa- But as the commiffioners have eftablifhed it as a rule, that 

miflioners of m " note- creditors have no right to prove intereft upon them, unlefs 

bankrupts, that it is exprefled in the body of the notes (1)5! will not break in 

rou creditor* - U p 0n t hj s ru j c# Even $t law, where notes are for value received, 

intereft upon and intereft is not exprefled^ the jury do not give the plaintiff, 

them, unisex- in an aQion upon the notes, intereft for them, but by way ol 

reliable one, Commiilioncrs of bankrupts cannot award damages, and 
an<i the court win therefore the rule they hive eftablifhed is a very reasonable one 3 
not reaK ro ^^ ^ e petition as to this muft be difmifled, but ordered him tc 
be admitted a creditor for thc faid fum of 1 1 /• 5 /. io d. 

(1) Sec Bromtry v. Good-re, ante, 80. the matter's report, tho* no intereft is ex- 

But upon an application to fuperfede a pre/Ted in the body of fuel* notes. Ex 

commiflion, and a reference to a rmfter parte Rookc, poft. 244. 

to fettle what is due to the creditors, (a) Craven v. Tickcll^FffJun. 63. 
notes will carry intereft from the day of 



♦Bankrupt *s* 

(V) Rule as to a petitioning Creditor* 

Ex parte Goodwin. w*>ri/ the 30th, 

J740. 

er the Divifion, Rule as to his Executor f or where he is 
one hhnfelf. 

te Wilfon : in the Matter of John Wilfon a Bankrupt. Arf* 6 **» 

E petitioner dates by his petition, that in May laft a ^afe 9 1 ? 

mmifTion of bankruptcy iffued againft him upon the The clerk of the 

>f Nathan James and others, upon which he was de- ^ Aebankiupt 

bankrupt, and his eftate and eftefts were afligned to to be arretted it 

fames and others, and in April laft a commiflion of In- the fuit of 7. the 

ed againft James, and he was found a lunatick j and dtor^^ffigii- 

anding he is one of the petitioning creditors and an af- ee,intheike- 

Ir. Fenwick, the clerk of the commiffion, caufed the J^ftTs^/. 

-, on the 1 6th of June laft, to be arretted in the (herifFs »nd air* caufet 

London for 80/. at the fuit of James, and afterwards ***her adion u 

tother adion for the fame fum to be brought in the £$£■£} ££• 

King's Bench, and kept him in cuftody from four fumandkepthim 

1 the afternoon of the 16th of June until eleven o'clock j« cuftody tM*7. 

morning, till Fenwici had an opportunity to arreft him nity ofarreftSf 

jug's Bench a&ion ; which being done, he withdrew him on the 

1 in the Sheriff's court, and the petitioner was detain- J^ , a ^£ e 

ftody upon the latter a£tion, and was alfo charged ward/chargei 

day with another aftion, at the fuit of one Mr. Jrafs, him with aoothet 

\ck as his attorney, which the petitioner apprehends J^ttf oneJ^Ux 

•ived by Fenwich purely to opprefs him, and therefore bankrupt appU& 

t he may be difcharged out of the cuftody of the Marflial * ^'charged 

. t, ' « V 3 cl> frombothac- 

nf s Bench upon the two actions. $ onu j m ^ 

licitor General, on behalf of the bankrupt John Wilfon, W. directed re- 

:hat the arreft at the fuit of James, as he was a peri- ^^J^LJ *** 

rcditor, is irregular ; and being therefore under an im- of cuftody ofth« 

reft, Wilfon ought to be difcharged, not only from this Marihai, as the 

from Wajs 's likewife. STeSSSi. 

f % f -rww * **•*«• n 1 lit w a* concerned ij| 

>unfel for Wafs read affidavits to lhew, that the bank- both aatoat* 

been guilty of perjury in fwearing, that part of his 

% in mortgage for 500 /. wheft in faQ: it was a grofs 

ried on between the bankrupt and the mortgagee, and 

Tefore he Ihould net be difcharged, even fuppofing there 

regularity in the proceedings, as they fhall never be 

tch him again, if once difcharged. 

bancellor : As to the behaviour of the bankrupt, it is A petitioniof 

il fa&, and has nothing to do with the prefent queftion, Jj^i^SJEjL 

1 come more properly before me upon a petition to dif- becaufe a ooa^ 

miffion of bank* 
nipt it both an a&ion and an execution in the firitinftance(x} % 

tk&jarte Wardtd Ex parte Lews, pofi. 153, 154, 

L4 allow 



Enfant 
Wilson. 



15* 'Bankrupt. 

allow his certificate : the affidavit befides is not p 
uncertain ; and if more certain, would not do, Thi 
not fuffcr a petitioning creditor to arrefl a bankrupt, 
reafon, becaufe that a commiflion of bankruptcy is 
both as an aftion and an execution in the fir ft inf 
after the petitioning creditor has laid hold of all the 
effefts, it would be a great abfurdity for the fame p 
permitted to arrefl him likewife. It is too material i 
F IC3 1 that the whole is done by the fame agent, and extreme 
that Fenivick arretted the bankrupt in the name of Ja 
ly to found the arreft at the fuit of Wafs. 

Even at law where there is an irregular aneft, an< 
tage is taken of the irregularity, to charge him in cuf 
the fuit of another perfon, die* courts of law will dil 
from both. 

So likewife in this court, where advantage is take: 
jury and oppreflion a perfon lies under by an impropei 
charge him in cuftody, though for a jufl debt, this 
.difcharge him from both. 

His Lordihip therefore ordered that Nathan Jjincs 
Wafs do refpeclively confent to the petitioner's imr 
charge out of the cuftody of the marfhal of the Kings 
fon, at their refpedlive fuits, and that they refpeftiv 
proper authorities to the Marfhal for that purpofe. P. 
that James fhould pay to the petitioner the colls wh'u 
tioner hath been put to by reafon of the arrefl at his 1 
he dirc£ted to be taxed by a Mailer. 



December the 
*3d, 1 74 j. 



Ex parte Ward. 



Cafe oi A N application to the Lord Chancellor to difchargi 



A petitioning 
creditor deter- 
mines his elec 
tion by taking 
out tht eommif- 



rupt now in the Fleet) at the fuit of die pctitioni 
and the aflignees, as they have determined their t 
coming under the commiflion. 

The petitioning creditor infifted, that the debt upci 
fion) M and W cannot founded his petition for the commiflion, was upon 
fue the bankrupt only from the bankrupt, and that he has fued him up 
fc^fflft and diftma no* of hand. 

from what he The aflignees infifted that they had full liberty to fu 

Pf rf Cd Sf iere ru P t at * aw * notw * t ' l ft an ding they are aflignees under 1 
prove n dc?t, un- f ,on * an ^ creditors before his bankruptcy, becaufe th 
der a commiflion, in value of the creditors had chofen them as aflignees 
Hffi n«*wiUno! ftan(lin g diey had refufed to prove any debt under 

determine their million. 

eledion, but Lc-J Chancellor : The petition muft be allowed as 

fu^hebankrupt petitioning creditor, for he has determined his eleftioi 
out the commiflion ( I ), and the affidavit on filing ou 
million is general ; nor docs it mention the particular 
a bankrupt becomes indebted. 

(i) Ex forte Wilfcn, ante 15Z. Ex parte Lewes, the n< 



at law. 



T&atfttupt ,53 

Uut there is no foundation to grant what the petition prays *£££ 
*ith regard to the affignces, for notwithttanding they are credi- 
tors of the bankrupt, yet as they refufed to prove their debts un- 
der the commiffion, the barely being attignees, by an appoint- 
ment of the majority in value of the creditors, will not deter- 
mine their eleaion; for they can only be confidered as creditors 
at large, fiuce they have not proved any debt ( i ). 

(,) Ex parte Cap*, foft. *!9. Sx W. S 6o. VUc ex parte W*f°>> W 
fVuD^rwIUers, pit. aai E< part* Jun. 159. 
Ijrtfo, ibid. ito. Ex parte Sak\:U, 1 P. 

Ex parte Lewes. fig?*" 1 *' 

TOUD Chancellor: A petitioning creditor cannot keep the Cafe 93. 
^ bankrupt in gaol, becaufe he has no eleaion, as a common A^rid.mng^ 
creditor has i for if he was to eleft to proceed at law, the com- tl ; cfjmeeleafa » 
million muft of courfe he fuperfeded, which would affect thole ^^^aca- 
creditors who have proved debts under the commiffion ( 1). *^jj£j f „ 

proceed at Uw, it would ft?"*-* ** co™^ 03 - 
{l) Ex parte Ward, ante 153. 

Ex parte Hylliard. f*g the *'» 

Vide under the Divlfion, Commiffion fuperfeded, 

(U) Rule as to Notes where Interejl is not exprefed. 

Ex parte Marlar and others. 1746. 

tide under the Divifion, Rule as to difcounting of Notes. 

(W) The Confruclion of the Statute of the 2 1 ft of Jac. J. cap. \y~jL/ t lZ 44*^* 
vih refpea to a Bankrupts Pofliffion of Goods after Jflignmcnt.g^,,^ 



1 

f fin 



efpcB to a Bankrupt's Pojfejfion of Goods after Alignment* g*^ d ., ^ &>* e.y* 

Bourne & al« Affignces of Peele a Bankrupt, v. Dodfon* D«*mfcr the $th 

1740. 

OHN Peele was for fcvcral years a merchant, and being in Cafe 94. 
1 73 1 poflefled of two fhips, the Dirts and Molh y fent the Affignmentof a 

Ai-lLi -i*. :- tX * S — J r. J !-i ^ ft- /hipatfcafora 



[ fime loaded with cargoes in his own name,, and configned to his taiuabkconfidc- 
" correspondents in Firginia or Maryland, for return whereof they ration rmy be 
were to bring back cargoes of tobacco; C14 hogfheads of the g^as-""*'**'- 

^•j ? • /• 1 ^ e> ; • 1 • • i A it fignccs ot bank- 

laid cargoes being conugned to Peele in his own right. He up- rupts> t ho\ no 

on their arrival poflefled himfelf of the fame, and entered them poflVffion l> 

at the cuftom-houfe in his own name, and gave his bond for {^'{f^^Viat 

" payment of the duties, and lodged the tobaccoes in his own u u d o'-herwifc. 

, wvehoufes, and kept the keys, and fold and difpofed thereof 

\ in hi* own name, and as his property. 

I Oft the 14th of February 1735, Peele 1 failed, and a commiflion 

krnptcy iHued againft him , Bourne and others were cYto- 

(civ 



i55 TBanfcrupt. 

*£**** T# ^ cn a % nccs > an< * at &* ^ me °f * c bantniptcy />«/r being m 
M0K * poffeffion of the faid two (hips, and all the cargoe that was un- 
fold, they were feized under the commiffion ; but the defendant 
infilled he had a right to the faid (hips, and to the bankrupt's 
effects in Virginia and Maryland, for that he had lent Petit con- 
fiderable Aims, and that on the 30th of May, 1794, there was 
due to him 10,500/. and to fecurc the payment thereof, Petit 
had by indenture of bargain and fale that very day affigned to him 
the faid two (hips, with their tackle and appurtenants, and a)! 
other his cftate and effc£ts in Virginia and Maryland, and alfo 
feveral goods fcnt to Maryland on board the faid (hips, and alfo 
to all the tobacco and effe&s to be by them brought back from 
Virginia and Maryland in return for the goods fent, fubje& co 
be void on payment of the 10,500/. to the defendant, and there- 
fore claimed all the faid effects. 

The money received from the bankrupt's eftate was, by agree- 
ment between 'the plaintiffs and the defendant, paid into the 
bank, till it appeared to whom the fame juftly belonged; and 
the (hips were likewife fold, and the money ariflng from the fale 
paid into the bank, in the names of the plaintiffs and the defen- 
dant Did/on. 

The plaintiff's counfel infifted, that as Dodfon did fuflfer Petit 
to continue in pofleflion of the goods, it was a fraud on the per- 
fons who dealt with Pcele, and that the affignment ought to be 
fet afide, and the defendant come in only as a creditor under 
the commiflion, for fo much as he (hall be able to prove, and 
receive a dividend pro rata only with the reft of the creditors. 

They alfo argued, that a mortgagee of goods, though he has 
advanced the full value for them, and the day of payment is paft, 
yet if he fuffersthc goods ftill to continue in the pofleflion of the 
mortgagor is equally a fraud, as the letting goods lie in a ven« 
dor's hands after he has made a bill of fale, or an abfolute con- 
veyance of them, and then afterwards becomes a bankrupt, and 
by confidering the cafe in this light, they endeavoured t6 bring 
it within the 10th and 1 ith claufes of the ftatute of the 21ft of 
Jac. the Fir ft, cap. 19. 

" And for that it often falls out, that many perfons, before 
€t they become bankrupts, do convey their goods to other men 
" upon good confidtration, yet ftill do keep die fame, and are 
41 reputed the owners thereof, and difpofe the fame as their own : 

<c Be it ena&ed, that if at any time hereafter any perfon or 
" perfons {hall become bankrupt, and, at any fuch time as they 
4C fliall become bankrupt, fliall, by the confent and permiffion 
41 of the true owner and proprietary, have in their pofleflion, or* 
44 der and difpoCtion, any goods or chattels whereof they fliall 
44 be reputed owners, and take upon them the fale, alteration, 
" or difpofition as owners, that in every fuch cafe the faid com- 
44 miflioners, or the greater part of them, fhall have poweT to 
" fell and difpofe the fame, to and for the benefit of the credit* 
" ors which (hall feek relief by the faid commiflionj as full at 
" any other part of the t late of the bankrupt." 

3 Tfc* 



TBanfccupt 156 

The defendant's counfel gave it as a reafon why Dodfon chofe B ££*" K Vi 
Tather the goods fhould dill continue in the bankrupt's cuftody, 
notwithftanding he had a fufficient lien upon them, that he did 
not care to fubje& himfelf to an account, if he had taken the 
goods mortgaged into his own cuftody. 

Lord Chancellor: This is a cafe of a good deal of confequence, 
and not without fome difficulties. 

The firft queftion is, as to die aflignment of fome (hips and 
their cargoes by way of fecurity for a large fum of money, 10,500/. 
(aid to be lent at different times by the defendant Dodfon to Peefe, 
and whether the property of the {hips and cargoes paffed thereby? 
The fecond queftion, whether Mr. Dodfon is intitled to re* 
tain two bank notes delivered to him by Peele the bankrupt of 
400/. each ( 1 ) ? - 

With regard to the aflignment, it is obje&ed, that it is frau- 
dulent, and did not pafs the property of the goods to the defends 
ant Dodfon ; for the plaintiffs infift this was an aflignment of 
pods without any poffeflion, and therefore if aflignor becomes 
bankrupt afterwards, that by virtue of the claufes in the ftatute 
of 21 Jac. 1. the commiflioners may fell them for the benefit of 
the creditors in general. 

The fa& is, the greateft part of Peelis effe&s at the time of 
the aflignment were beyond fea \ now, it would be very detri- 
mental to trade, as it would deter merchants from lending mo- 
ney, if, notwithftanding they fhould advance a large fum by 
way of mortgage, the property is not altered, but fubjeft to 
mortgagor's creditors under a commiflioi* of bankruptcy, unlefs 
the fhips return before the commiflkm is taken out, and the 
efieds are in the a'&ual poffeflion of mortgagees. 

As to the conftru&ion of the claufes in the ftatute of the 21 
Ja. it is a point of very great confequence, and I do not re- 
member in this court, or while I fat in another, that the con- 
flru&ion of thefe claufes were ever made a point in^ony cafe. 

As to the general cafe, where bills of fale are made of goods 
tnd the purchafer fuffers the bankrupt to continue in poffeilion, 
k is plainly within the letter of the ftatute, but I do not think 
this can be conftrued to extend to a bare loan of money upon 
the goods by way of mortgage, for the words in the claufe are, 
goods fold for a valuable eonfideration, and valuable conjideration is 
inoft properly applicable to an abfolute fale. 

In the cafe of pawns, which is fomething like the prefent, the Pawnee huonly 
pawnee has only a fpecial property in them, in cafe they (hall not Special property 
he redeemed within the time required. % tJE^$ZLk 

According to the original 1 agreement, the defendant Dodfon the time. 
was not immediately to take poffeflion of the (hips and cargoes 
bat at a future day, and if the bankrupt had not a right rrom 
the time of the agreement, to exercife fuch a power over them 

( l ) This money was paid by the bank- mitted the ad of bankruptcy ; Zhdfon by 
rapt a few days after, the 1^ of Fib. 1734, his anfwer denied notice of the ad of 
it was alledged, that Pale com- bankruptcy. Reg. Lib. d. 1740./. 257 

as 



157 'Bankrupt. 

Bo9«»e «. as ] 1C before had* but was now become fubjeft to the mortgage, 
D©dsok. t | jen t j^ s ca j. € j s not w j t j 1 ^ n tnc c j au f e f t hc ftatute. 

There is nothing more common than affignments of (hips 
which are out upon their feveral voyages, as a fecurity for mo. 
ney, and yet the aflignee does not look upon it, that he has 
any property, but the aflignor directs the mailer of die fhips as 
to the voyage, and every thing neceflary ; and if contracts of 
tMs kind had been confidered as falling m ithin thefc tiaufes, this 
cafe mud have happened frequently, and would not have been 
the firft time of its being made a point in die courts in Wtjl- 
mtifler-ha'!. 

Thufe claufes have never been thought of, till the cafe of 
W Vef - 35*« Stephens v. Sole, before Lord Chancellor Talbot 3 (a) July the 6tt t 
*^ ft, | I » I 7°- 1736, There a perfon^ owner of three hoys belong: tig to the river 
An owner of Thames, mortgaged them y and after he had fo done, was fufferd 
hoys mortgagee by the mortgagee to make ufe of them in the fame manner as befire 
foXng?t s a £f- fr ^ree years *:g etler > and appwd to all intents the vftble cwm 9 
fcred by the and perfons lent him money upon the credit of his being the oviner^ 
mortgagee to ufe anc j therefore a very ftrong cafe ; and Lord Talbot ', upon thefc 
yean together* particular circumftances, adjudged it to be within the fta« 
and has money tute ; but as this is only one authority, it would not be at aO 
lent him upon p roper f or me t0 determine a cafe of fuch great confequence W 

the credit or be- r f . , , .. ~ . . . >•/••• «j r 

ing the owner, trade, without thoroughly confulering it; for it it is a void u« 
they arc liable fignment, it is void at law, and then I {hall not take upon me it 
a°commiflion d of e q uit y» abfolutcly to decide a matter which is properly triable 

bankrupt, at law. 

On the other hand*, it would certainly be of bad confe 
quence, if I (houkl determine this cafe not .to be within flu 
claufes of the ftatute of the 21 Jac. becaufe it muft neceflaril; 
open a door to fraud, for traders then might borrow mone] 
to the full value of the goods, and though the mortgagee fuffer, 
them to lie in die hands of the mortgagor, the lender will nofc 
withftanding fecure the property to himfelf, to the prejudice d 
all the reft of the creditors. 

All that remains is, Whether Mr. Dodfon is intitled to retail! 

two bank notes delivered to him by Peek the bankrupt of 400^ 

each. 

Where a creditor Now it is certain, though the aft of parliament of the 

or a bankrupt h» , j ac ^ , j las provided an indemnity for debtors to a banfe 

jeccivcd money •/ , f . , . / , r , . . 

of him, and an rupt who pay their money to him without notice of the pan* 4 
aaion is brought ruptcy, yet that ftatute docs not indemnify a creditor of a bant 
toRcmr?ack ru P t ' un ^ s lt a PP ear s that he had no notice of die bankruptcy if 
fuch money; die time of receiving his money. 

the\ muft prove 

fuch creditor had notice of the bankruptcy, when he received the fame. 

wiiere^odsare The courts of law have confidered diis latter cafe as J 
«!dto d aft«r har . d one > and alwavs hcld tbc affignces to a Arid proof d 

•otlceof an a a notice, 
of banbruptcy, 

the proper action for the aflignee s is trover, becaufe there is a tin in detaining, though he came light 
. fully to the pofloflion of the g &&. 

Tb 



35attfcwpt. 158 

The next queftion will be, In what manner if {hall.be tried? Botrt** *. 
If the aflignees in this cafe bring an a£Uon as for goods had and Do0,ON * 
received to the bankrupt's ufe, the courts at law will nonfuit 
them, becaufe the property was certainly out of the bankrupt, 
as they were transferred for a juft debt, and therefore the pro* 
per adion would be trover, becaufe here is a tort in detaining of 
the goods (though he came rightfully to the pofleffion of them), 
as they were delivered to Dodfon after notice of an a£t of bank- 
ruptcy, for from that time they became the property of the ge- 
neral creditors (1). 

But if I dire£l the whole to be tried in trover, it will create a 
difficulty as to the two bank notes, and therefore it will be better 
to try it upon a feigned iflue. 

His Lordfhip then directed the two following iflues : 

Firft, Whether the defendant John Peele became bankrupt on the 
14/4 jf February 1 734, or en any other, and what day? 

Secondly, Whether at the time of Peek's becoming a bankrupt, 
ictwoJbipj 9 Diggs and Molly, and the goods in the affgnment of 
it 30/4 of May 1734, or any and which of them were the flips \ 
fois, and chattels of the defendant Dodfon ; and if found that Peele 
heme bankrupt any other time than that mentioned in the ijfue, the 
fmet$he indorfedon the poftea, and all further directions referved 
til after trial (2). 

N. B. The parties afterwards compromifed it, and the iflue 
was never tried. 

(1) See BiYtom v. Hyde, ante 128. Brown v. Heathcote, poft. 160. Ryall v. 

(2} Reg. Lib. A. 1740. E. 257. See R<nvles,po/h 165, 



Ex parte Marlh. A**/ the »»# 

^ *744- 

MR. Matfb a mercer died pofitfled of goods to the amount Cafe 95. 
of 2000/. and upwards, fome time after his death, his Poft , 7 - ^ c# 
Wow married her hufband's journeyman, but before the mar- Marriage with- 
Age articles were entered into, reciting that fhe was en- j^jj^jjjj 11 . 
tokd to an eftate of the value of 600/. and upwards, and alfo ation tor on »- 
^citing that he had taken the money and given a bond for fe- grecment. (1) 
fitting the fum of 600/. to truftees for her feparate ufe, and 
fat fee mould have the power to difpofe thereof as (lie mould 
tfok fit by deed or will, and being alfo in pofleflion of forqe 
jbtt belonging to her firft hufband, fhe had a further power by 
4e articles to fell it, and to pay the money arifing from the fale, 
«tto the hands of the fame truftees for the ufe of her children 
fy her firft hufband. 

The wife is dead, but before her death executes a deed, and 
appoints the 600/. and alfo the plate, for the ufe of her children, 
to be equally divided between them. 

tO Brvwn v. Jws, p*ft. 188. 190. Lancy v. Atbol, pofi. 2 vol. 445* 

«•• • . . 9 The 



»s* feantatpt. 

Makm! #I * e ^ ccond hu^and w become a bankrupt, and the chfldf en i 

the firft applied to the commiflioners to be admitted creditors fi 
the 600 /• and to have the plate delivered up to them. 

The commiflioners refufed, upon the fuggeflion of the ban 
rupt, that he was drawn in, and deceived in the opinion he h; 
of his wife's fortune before the marriage. 

The application now on behalf of the children that the pla 
may be delivered up by the affignees, and that they may be ai 
mitted creditors for the 600 /• 
£ 159 ] Lord Chancellor : Here is a man, of the trade of a mercc 

leaves a (lock and goods to a confiderable value. 

This ought to have been divided according to the ftatutc< 
diftributions, one third to the wife, and two thirds to the chi 
dren, the wife pofllfles the whole ; on her fecond marriage, i 
order to provide for the children of the firft, (he and her hui 
band enter into articles to fecure 600 /. for her feparate ufe, tf 
as before dated* 

This is in confideration of the marriage, and of the fortur 
(he brought -, and, unlefs fome fraud appears, it mult have i 
effeft. 

No doubt but this is a contraft for a valuable confideratior 
but then it is infilled on, that this man (who was the journr 
man to the firft hufband, and mult be prefumed to know wh 
were Mr. Marjh's effe&s) was deceived in the opinion 1 
had of Mr. Marjb's circumftances, and faid by the affignec 
counfel, that, if he was defrauded, this is a ground to 1 
lieve the bankrupt, and the creditors have a right to (land 
his place. 

All marriage agreements differ from other agreements, i 
thefe do not arife from the confideration of a portion only, b 
on account of the marriage. 
Awoman'ifor~ A man thinks fit to marry a fingle woman or a wido 
of^c'huiband^ am * * ma g' ncs ^ c ^ as ^ uc ^ a fortune, and perhaps on a ftri 
expiations, i s account, or by fome defective debts, it fhould fall fhort, 
no reafon for would be very mifchievous to fet afide marriage agreements f 

lotnt. No inventory delivered in to the ecclefiaftical court by Mi 

Marjhy as adminiftratrix to her firft hufband, which ought 1 
have been done, as the children were intitled to two third 
The fecond hufband and his wife pofTefs themfelves of all tt 
flock and goods of her firft hufband,, and never make or deli? 
in any inventory at all, nor did they make up any account 1 
which the children could have what they were intitled to. 

If this came before the court in a caufe, would they fet afidc 
marriage agreement on fuch circumftances? They certain 
would not. 

The plate depends upon another point. 
Tliecltufeinthe if this was the plate of the firft hufband, and came intod 
c^LV]^ poffcffipn of the adminiftratrix, or into the hands of the J* 
fwdtrntbtpof- fbn marrying that adminiftratrix, this certainly is not wiM 

Jfffion oft hank- * 

ruff, whereby be£*btt agtmral ertdir, Jb*U be IMt t$ bit crt&m, reUtts to goofc tfat tolkn|ti 
ia hu own nfht only. 



TBanttupt i 59 

the meaning of the ftatutc of the 21 Jac. i. (tvhichfays that all 2 Ex pane 

gcis in the poffeffton of a bankrupt, nvberebv he gains a general cr<- * AM, * j 

dityjhall be liable to his creditors), becaufe nere the adminiftratrix 

bd them in outer droit, and the hufband could have them in no 

better right, and therefore not at all liable to the debts of the 

fecond hufband ; for the meaning of the ftatute (if it is poffible 

to put any meaning upon fome claufes of this ilatute, which are 

▼cry darldy penned) is only with regard to goods the bankrupt 

has in his own right (i). 

His Lord/hip therefore diretled the children of the fir ft hufband to 
\t admitted creditors under MarlhV commijfion for the 600 1. and the 
flat* to be delivered up to them* 

(l) Vide Ex parti Ellis, ante 101. 

Swim, Affignee of Roger Williams a Bankrupt, v. Heathcote [ 1S0 ) 
and Martyr ^^f^^^s^^^ o^^theiad. 

DOGER Williams, and his partner Jeremiah Wilder, gave a Cafe 96. 
** bond to the defendant Heathcote for 1200/. and on the r. w. and hit 
fame day executed a deed of aflignment, by which it was P^tner ga*e « 
agreed, if default fliould be made in payment of the money it^/^atb* 
•chanced by Heathcote, Williams and Wilder {hould make over fame day by 
to the defendant Heathcote or order, the goods in the two (hips d £ ed a ^? ned J* 
Samuel and Mollys and Ame Billander, together with the bills of g< ^ in Xio 
fading, which might be the proceed of the returns of the faid Aipsthcnatfea, 
foods and cargo for any port in England, and that fhould be con- %*$? ,3 J^* 
r. — j to ifrmi anu an( j jfruder, and that they fhould put Htath- poUciesofinfur- 



afrinpofleflion thereof; and theyalfo covenanted that after re- * ncc > containing 
living advice from beyond fea of any goods, that they would ^oUateraUVc^ 
acquaint the defendant Heathcote with it, and impower him to rityj the latter 
diffofe of the fame, and keep the money arifing from thence in »<*<»*>* to£f. 
kusfa&ion of his bond, and if there (hould be any overplus, to The bni brought 
fay it to Williams. by the affile 

o£R. tf'.nowa 
Ukropt, (at thefe goods, infilled that R. W. aged as the tifihie owner of th? (hip and cargo, being 
Wput into the poflelfion of H. and therefore the plaintiff intitled thereto for the benefit of the cre- 
ws at Urge. The court of opinion that every thing which could (hew a right to the Ihip and cargo 
teiag delivered over to H. R. W. could no longer be faid to have the order and dijjfnfiticn of them, and 
feidbresot within the meaning of the 2 z Jac. cap, 19. and cofafequently H. has a right to retain thft 
*ia and cargo, tUl th« principal fum of 1200/. and intereft is fatisfied ( 1 ). ^^ ^* <~^%r/Z< 

h>ger Williams did accordingly affign over to the defendant J! <#z2Z'*fy -# 
Htatbccte thirteen bills of lading, and feveral policies of infurance, jjj 

containing the goods in the fhip Samuel and Molly, as a collateral — 

rVcnrity for the fum of 1200 /• the latter were indorfed to the 
defendant Heathcote, but the former were not. 

(1) So ex parte Mathenvt> 2 Vef. 272. and go upon another voyage. Ex parte 
Minfonv.Malings, 2 Darn. &Eaft 462. Mathews, 2 Vef. 272. Hall v.Gmwj, 
Lmprierr r. Pajhj, ibid.jfi$. Ex parte I Cooke's B. La*s, 380. Fide ex pane 
hfi* % j Bro. Cha. Rep. 362. Secvs if Stadgnom, Fef. fun. \6$. 
4c creditor fairer the fhip to come back, 

At 



160 TSan&rttpt. 

Brown t. At the time of thefe tranfaftions between Williams and Heath* 

Hbathcotx. ^^ t j ie |^jp wift at f ea j n a VO y a g e t0 Quitted. 

The bill is brought for thefe goods by the plaintiff as the 
affi-niec of Roger Williams, who is now become a bankrupt* 
The aflignmcnt to Heathcote bears date the ioth of Jan. 1736. 
The lhip Samuel and Molly came home the i$x[\ofjulj% 1738. 
The commifHoii of bankruptcy againft Williams ifiiicd the 17th 
btO£loher y I7.}*>. 

Roger Williams was found a bankrupt as far back as AV 
vember, 1 737. 

A feparate commiflion of bankruptcy has been alfo taken out 
igainft Jeremiah Wilder. 

The counfel for the plaintiff in filled; that this aflignmcnt to 
Heathcote will not bind the Creditors under the commiilion, 
as Roger Williams the aflignor acted dill as the vifible owner, 
for the ihip and cargo were not put into the poflefiton of Heath- 
1 cote\ and therefore the plaintiff, as the aflignee under the com- 

miflion of bankruptcy againft Williams > is intuled to the cargo j 
^ for the benefit of the creditors at large, 
I 10 1 J p or j^ plaintiff was cited the cafe of Bourne, aflignee of J 

W s » c * anu Pecle a bankrupt, v. Didfm, (a) the 4th of December 1 740, and ,of '\ 
* Si ' Ryalw Stevens, March the loth, 1 743, and the cafe of Stevens Y. j 

IS/is^'sVc! S°* e 9 (*) before Lord Talbot 9 who was of opinion that an aflign- *\ 
A b ' ind bt- ment °^ barges D y a perfon, who, notwithftanding fuch aflign- j 
ed to B. affigns ment, kept poflcifion of thefe barges, and worked them, was 2 
over barges to if. fraud on his creditors at large, and therefore decreed the barges 
fceeVfe pllcf- t0 bc ^ lc P ro P ert y of tJlofc creditors, and lawfully feized under 
fion, this is 3 the com million againft the aflignor. 

fraud on the , 

creditors at large, Ind the barges may be feized under a commiflion of bankruptcy taken oat afterwards 

againA A. 

Mr. AW for the defendant Heathcote. 

At the time of the aflignment the (hips were actually failed and 
gone abroad, and therefore the delivery of the (hips and cargoes 
to the defendant Heathcote was impoflible. In the cafe of Bourne 
v. Dodfon, your Lordfhip doubted whether the ftatute of the 21 
jfac. 1. r. 19. extended to a mortgage of goods, and was rather 
inclined to think the aft confined it to an abfolute fale (ij* 

The cafe of Ryal v. Stevens was an aflignment of a brewhoufe 
and utenfils here in England i fo that the pofTeflion there wa$ ^ 
capable of being delivered, and confequently different from the 
prefent* 1 

Stevens v. Sole is alfo different, for the barges were actually i 
worked in the river Thames, and therefore the pofTeflion of them j 
might likewifc have been delivered. ' 

He further infiftcd this was an actual aflignment, the policies of ! 
infurance being indorfed to the defendant Heathcote* 

Mr. Wilhraham of the fame fide argued. . \ 

That fuch a contra ft as the defendant made with William* * 
was a perfect and compleat fale, without the delirery of tht 
goods. 

(1) See Rjalv.Ro!h,foft. 165. 



•Bankrupt 161 

Thzt if it was not a legal affignmcnt, yet the defendant had **°w* ▼• 
in equitable lien upon the goods, by virtue thereof, and had a 1ATKC0T ** 
right to retain them againft the plaintiff as an aflignee under the 
commiflion of bankrupt againft Williams \ and in fupport of this 
cited Taylor v. Wheeler, 2 Vern. 564. 

Lord Chancellor: In the extent in which this cafe has been 
argued at the bar, it is a queftion of very great confequence. 

But I would obferve in the firft place, this is a cafe which has 
come feldom before the court, and much ftrongtr in favour of 
the defendant than fuch cafes generally are. 

For the common cafes are, where the creditor has pretended 
to fet up a demand for an old debt, and the perfon owing has 
it that time been in declining circumftances \ and this credi- 
tor, in order to gain a preference, has procured an aflignment 
of goods from the debtor, who foon after becomes a bankrupt ; 
even in fome of thefe cafes, if the creditor appears to be a 
fidi one, he has prevailed, though the court leans ftrongly 
aft fuch a creditor in favour of the creditors at large. 
Here the bond to the defendant Heatbcote, and the aflignment, 
date the fame day ; therefore this cafe (lands clear of any 
r of fraud, with a view to gain to himfelf a preference to 
creditors. I mention this to fliew in how much more favour- [ lfi2 ] 
a light this defendant (lands than in the common cafes. 
The cafe of Jacobs v. Shepherd, that was originally heard be- 
Sir Jofepb jeiyll, was an aflignment of goods, which at the 
of the aflignment were a&ually beyond fea, and yet Sir 
ftfipb fet it afide, as the borrower was then in failing circum- 
tances ; but Lord Chancellor King upon an appeal reverfed the 
lecree at the Rolls ( 1 ). 

I will firft confider the cafe on general rules both of law and where there it 
equity. in tflignmsiit «C 

It has been inflfted by the plaintiff's counfel, that this aflign- J^SjL, it 
bent to Heathcote is no legal bill of fale, or legal aflignment to is 1 compie* 
n of thefe goods. ST"^ £n<* 

And it muft be admitted, as to the homeward bound cargo, delivered to tb^ 
is no legal aflignment. iflienec. 

But it has been carried (till further by the plaintiff's counfel, 
r they have likewife infifted the aflignment does not amount to 
bill of fale of the outward bound cargo, for want of a delivery 
t the goods themfelves to the defendant Heathcote. 
I am of opinion that a delivery in this particular inftance was 
t abfolutely neceflary to make it a compleat contract ; as in the 
& of a horfe fold in a market overt, if die buyer pays the money 
ir him, he may maintain an a&ion againft the feller, without 
ewing a delivery of the horfe. It is true, the want of a deli- 
ry it often an obje&ion, and a material one, but how ? Why 
a badge of fraud ; for where a fubfequent creditor has taken 
t goods in execution, a prior creditor muft (hew a delivery, 
in Jive's cafe, 3 G?. 80. 

(s) This cafe is cited in Small v. Oud- Mansfield in I Burr. 478. 

■.% P. JSP. 43 1 . and more fully by Lord 

Vtt. L M But 






i6i 

Br own v. 

HtATRCOTS. 

Xndorfing bills 
Of file does not 
amount to au 
afiigmnent, un- 
lets the goods are 
dire&cdto be 
delivered to the 
aflignee. 
Aifigueet under 
commifiions of 
bankruptcy take 
fubje& to all 
equitable liens 
againft the bank- 
rupt himfelf. 

Alignments of 
chofes in a&ion 
for a valuable 
confederation, 
are good againft 
creditors juider a 
coramiffion of 
bankruptcy. 



[ 163 



W s. c. 1 p. 

//'. 2X2. 1 Strm. 
5<;f. 9 Med. ll. 
Max. im Eq 
iaitcafe. 



bankrupt 

But it has been alio infilled on the part of the plaintiff, that there 
are no proper words of affignment in the deed ; 1 am fo far 
Cf opinion with the plaintiff, that what has been done in this 
cafe does not amount to a fufficient legal fale. Even if there 
had been an indorfement of the bills of lading, it is no aftual 
alignment, unlefs the goods were directed to be delivered to 
the aflignee. 

But then the qucftion will come to this, whether the defend* 
ant Heatbcote hath not a fufficient lien upon the goods in point 
of equity ? for it has been truly faid, that aflignees under a com* 
million of bankruptcy muft take fubject to all equitable lien* 
againft die bankrupt himfelf. The cafe of Taylor v. Wbeekr it 
exactly in point. 2 Fern. 564. 

*" In the cafe of Cock v. Goodfdla%v % Trin. term the 8th of Geo. tcj 
lid. Macclesfield was of the fame opinion ( 1 )• The ground thfl 
court goes upon is this ; that aflignees of bankrupts, thougl 
they are truftecs for creditors, yet (land in the place of the baahj 
rupts, and they can take in no better manner than he conMj 
therefore affignments of chofes in action for a valuable confidS 
ration have been held good againft fuch aflignees. \ 

If this is an affignment therefore for a valuable confideratio 
it will prevail in equity in favour of the defendant Heatbcote* 
is very true, the deed is not an actual affignment, but yet there 
fufficient upon the face of.it to (hew, , that Heatbcote had a chai 
and lien upon the goods, by virtue of the loan of the 1200/. 

The policies of infurance have been indorfed to him, thou 
the bills of lading and invoices have not. 

I will firft confider the cafe on general rules of equity. 

Suppofe Roger Williams had declared only by the deed^jJl 
though he kept the poffeflion of thefe goods, they flioufd ftUI 
main as a collateral fecurity to the defendant Heatbcote, it 
have been an equitable lien. 

It has been further objected by the plaintiff's counfel, 
all this was executory only, and no lien gained till the goo 
came home. 

This is by no means a neceffary confequence from the da* 
in the deed, and befides there is one claufe which expreftly 
ables Heatbcote to fell and difpofe of fuch effects, and keep 
money arifing thereby in fatisfaction of his bond, upon 
ing the overplus to Williams. 
, Therefore taking into confidcration the whole of this deed, 
amounts to an equitable lien upon thefe goods, as a coYenfiit 
execute a power is considered as done. Vide Ld. Coventrf* 
(a) And I- am of opinion, as this appears to be a fair tranfadi 
and money actually paid, and not an old creditor endeavour 
to get an undue preference, that it ought to be fupported 
equity,. "„ 

I Avail, in the fecond place, confider what has been urged 
plaintiff's counfel upon the claufes m the 21 Jac. *• 19. 
thefe goods, by virtue of that ilatute, arc Ycftediii the ~~ 



(1) a P. #'.430. toAf*/« 489. 1 Burr. 478. S* C. J 



I 'Bankrupt. i6j 

I rf Ac bankrupt, for want of the dclfvery of them to the defend- Brown t. 
ant Heatbattc by Roger Williams, and that the defendant can HlATHC0T *' 
only come in as a creditor under the commiffion, and is not in- 
titled to retain them till his whole 1200/. is fatisfied. 

It has been infilled, that as there was no indorfement of the 
tills of lading and invoice to the defendant Heathcote, they wore 
left under the folc dire£tion and difpofition of the bankrupt; 
and therefore are fubje£t to the claufes in the aft of ^arliamenr. 
.If this do&rine fhould prevail, it would be attended with the 
jnoft mifchievous confequence. 

There has been no determination upon thefe claufes, fo that 
according to the rule in refpeft to laws in other countries, they 
[might be faid to be gone into defuetude. 

[ Such a conftru&ion would bind up property, lb that it would 
|k a great detriment to trade and commerce in general, 
I do not think thefe claufes were ever meant to extend to 
gages or pledges for money or goods, becaufe it is impof- 
: in an aflignment of goods beyond fea, that they can be de- 
ed over to the affignee. 
i u l( any perfon (hall become bankrupt, and, at fuch time as Claufeofthe 
f they (hall fo become bankrupt, fhall, by the confent and per- <*»tutein qucf- 
' million of the true owner and proprietary, have in their pojfeffton, Uoa ' 
}mrjtr 9 and difpofition, any goods whereof they fhall be reputed 
* owners, and take upon them the fale, alteration, or difpofition 
ias owners, that in every fuch cafe the faid commiflioners (hall £ x &4 J 
have power to fell and difpofe the fame to, and for the be- 
nefit of the creditors, which (hall feek relief by the faid com- 
mtflion, as fully as any other part of the eftatc of the bankrupt." 
ttc aft does not confine it merely to having the goods left in 
krir pofftjfion, but alfo the order and difpofition thereof, which 
1 explained by the words that follow, " whereof they fhall be 
fated owners." 

, To apply this to the prefent cafe. 
With regard to the fliip, there is no colour to fay it was fo 
A in Williams's pofleflion, as that he could take upon him the 
fier mnd difpofition thereof 
k Confidcr it in the other refpefls. 

j/The bills of lading and invoice were delivered by Williams to' 1 
itbcote, fo that every thing which could fliew a right to the 1 
ds was delivered over to Heatlxote ; tlien how could Williams 5 
K laid to have the order and difpofition of them? r 

'lam of opinion therefore upon the whole, that this is not 
the meaning of the acl of parliament of the 21 Jar. 1. 
Jt entring into the nicety of the words true owner and pro- 
ttary, and I do agree with Mr. Wilbraham^ that in this court 
I mortgagors, as having much the largeft (hare in the cftate, 
\ considered as owners and having the property in it ; and for 
\ reafon mortgages are not within the intention of this act ( 1 )• 
fJLet it be referred to die Matter, to take an account of what 
ioc to the defendant, for the fum of 1 150/. part of the fum 

( 1) See Rj*tt v. Mle, pft.\(>\. 

M 2 q£ 



i6 4 tfatfttupt. 

Bkowh «. f 1200/. mentioned in the condition of the bond dated th 
Hiathcot*. f j anu ary 1 y^b, and in the indenture of the fame date, a: 
for the fum of 25 /• afterward* advanced by him, upon ai 
ranee of the goods mentioned in the faid indenture, togeth 
intereil for the fame, at the rate of 5 per cent, per ann. a 
defendants Heatbcote and Martin are to come to an account 
the Matter for the goods and cffe&s, part of the cargoes 
two (hips called the Samuel and Molly and Ann Billandt 
the produce of the faid (hips, and what (hall be coming 
(aid account of the faid goods and effe&s, and alfo the p 
of the faid (hips is to be applied in the firft place, in payn 
what (hall be found due to the defendant Heatbcote for his 

Eal, intereft, and cofts, and to the defendant Martin for hi 
ut in cafe the money that (hall be coming on the faid 1 
of goods and efle&s, and alfo of the produce of die faid 
(hall not be fufficient to pay unto the faid defendant, wh 
be found due to him for principal, intereft, and cofts as af< 
then the faid defendant Heatbcote is to be at liberty to com 
the refidue, as a creditor under the refpe&ive commiflions 
ed againft the faid Roger Williams and Jeremiah , 
and to receive a dividend in refpeft thereof, in propoitic 
the other creditors* 



f ///-f 165 ] Sir Matthew Ryall and others, Aflignccs of William 1 D| , 
**/^ ji»^ the HarveJI a Bankrupt, ' J m 

00 /?$* ,749 ' 
^jftt*" 1 Cafe 97. &*& Executor of Jonathan Stephens, and others, Defe 

C ' V* ',£' ™?V U f ORD Hardwich Chancellor, afiifted by Sir Willi; 

^' 170? S. C. * -L Lord Chief Jujlice of the court of King's Bench, Sir 1 

Upon the con- Parker Lord Chief Baron of the court of Exchequer , and S, 
Jae.ueap.\\.f. ma8 Burnet one of the jujlices of the court of Common Pleas. 
11. determined Mr. Jufticc Bur net : William Harv*jl, a trader witl 
i yL S?^f anCCl " bankrupt a&s, being indebted to Benjamin and Jofeph 2 
fon advances 1 *'" did by indenture of the 2d of June, 1732, denrife his 
money upon a brewhoufe, and out-houfes, and coppers and utenfils fixt, 
S^^doe. lon 8 in g t0 ** brewhoufe, for a term of 500 years, red< 
not infift upon a upon payment of 1500 /• and intereft. 
delivery thereof, On the 15th of Oclober, 1 736, Harvejf entred into \ 
c^rfthe °et! top with Jonathan Stephens deceafed, to whom R die the 
dor, and not on ant was executor, and the utenfils and (lock in trade v 
*"f T* °ri P * rti " praifed at 14,000/. and Harvejt conveyed one moiety the 
tnd^ujhtto^ Stevens ; they carried on the trade jointly till the 26th c 
come in under a 1740, when Harvefi became a bankrupt. 
UnfcJuptey° f ° n thc 2 4 dl of December, 1776, HarveJI in confider 

•cainft'the /en- 4000/. did, by way of fecuring the fame, aflign aver his 
d0r> *V nuch M of the utenfils and (lock in trade to one Potter in truft 
Sft pi«c?s!^o^- ww » anci t * icrc was a claufe ia. that mortgage to fecure ai 
fidence in the that fliould be. afterwards lent. 

bankrupt perfo- Sir Thomas Reynell having entered into two bonds at J 
7 ° for HarveJI, he on the iotli of December 1737, in confii 



•Bankrupt 165 

of 1000/. affigned one feventh of his moiety of the partnerfhip Utah.*. 

ftock, &Tf. to Sir Thomas Reynell, with a defeazance to be void K " 1 - jfe£, 

upon his indemnifying him againft the bonds: the houfe and^^y^^' '' / 

krewhoufe, with the out-houfes, had been mortgaged to the >yp /jam* <%"' 

Tmiins's in 1725, for fecuring 1200/. and in 1731 this mort- f ''&j/Z^> 

gage was afligned over to one Baugh, who in November 1736 rev^v s j0aJ& 

conreyed all the utenfils to William Harvejl the bankrupt. *0A*^<6 * """* 

By indentures of leafe and releafe bearing date the 6th and yth c> jfajfrd/. / - 
lb September, 1738, Baugb in confideration of the principal mo- ' J^~~ stm<** A 
ncy, by the dire&ion of Harvejl, affigned over his mortgage to< ^^^^^^l_^^ 
hvens, and Harvejl affigned over a moiety of the utenfils, as fc^^V 9 *^^*^^/? 
collateral fecurity 5 upon this mortgage 2355 /. is due, Jo that it/- ^<e*&*<*^ - 
h plain, that this mortgage will be preferred, as to the realejlate, to yfeyf/z *&<*r^f **' 
the Tomkins's, but their mortgage will be preferred as to the coH*te-j>lp *&**&£ ?^ 
rd fecurity of the utenfils : the laft mortgage is of William Har- s ' e V^^L^, 
tjf to his fon George, dated the 6th of March, 1738-9, of ons**/ 1 ^ Js* /y # 
fcrenth part of his ftock, &c. for 1000/. ~Jfa**af-* " 

The queftion is, Whether all, or any, and which of thefc <£***^ <^44<*€&.Jm* 
nortgagees will be intitled to rcfort to the utenfils, lie. for ^ Sf ^ r %€^c : c <6\<4y> 
bisfa&ion, or whether they mult come in under the commif- 
ion ? And it depends upon this, Whether thefe mortgagees or 
any, and which of them, did not fo permit the bankrupt to con- £ 166 1 
tinue in pofleflion, as to be within the ezprefs words of the ftatute S3 —S 

of the 21 Joe. i. cap. 19 ? I will confider this queftion in three ^t/*m~*+^+^/"* 

Firft, The nature of a mortgage or conditional fale of fpeci- y^ „/^*'**^r*t* 
6ck goods or things in pofleflion, (of which there might have ' ? t~s? 

been an aftual delivery), where the bankrupt is fuflered to con- ^2__^1-— — 

tinue in pofleflion till his bankruptcy, and whether there is any ^? eSy^**** 
inference betwixt fuch a mortgage, when made to a ftranger or r^^^jis-,*// 
*hen made to a partner ? X - '' ^V^^^ 

Secondly, The nature of three of thefe mortgages to ftrangers, /&LT~? 

as fales partly of things in pofleflion, as utenfils, £sV. and partly " 

of chofes in aft ion, as debts and profits in trade. 

Thirdly, Whether there will be any difference as to die general 
fale, betwixt fuch a mortgage made to a partner, and made to 
a ftranger. 

Although the prefent queftion muft be determined upon the 
conftru&ion of the ftatute of th« 21 Joe. 1. yet it is necefiary to<i>V^P"« 

confider the conditional creditors as to their debts before that ^^^, 5C .__ 

tatfite ; but it is previoufly neceflary to clear the cafe of argu- ^ 

ments drawn from the nature of pawns, which are foreign to ^^^^ ~ ><£<.- A*&& 

f Ae prefent queftion. •* ■ ' ?!±l*f*:.. 

It is contended that pawns among the Romans required a de- <£ j£**y^ /"iw/i^u 
fence, but that mortgages did not. j ^ Jj^ ^ ^ 

, As to the Roman law, there was an authority cited from Jujl. l 7 / 

hfl. lib. 4. ///. 6.fecm 7. Nam pignoris appellatione earn proprie rem " 7- - 

tntmeri dicimus, qua fimul etiam traditur creditori, maximefi mo- *//*/& sty*^ J*~+£& 
misfit ; at earn, qua fine traditione nuda convtntione tenetur, pro- /. „//. $ . 'Mfl* f*+ 
irie hypothecs appellatione contineri dicimus. If this paflage ftood £- f f 




t, it might go a great way to prove what it was cited for : y v ,._ /j? A > 
ft when I produce authorities to flicw that pignut is as valid p^j/ ^ ^^3>T^ 

M 1 without ' ™ ' ^ '7*7' — 



M 3 without 




166 *55aitltupt. 

Ktali v. without a delivery as with one, it muft be allowed that 

Rolli. p a flage$ have been fo interpreted, ihztpignus can only be of 

%^/e^^f f+/jk^> capable of delivery, and hypothcca of goods not capable of 

^k*'*/-/^^^ ver y» Domat. I. I. c. l.f. I. Wood) lib. 3. cap. 2. /. 

-^ — ~ big. 50. /. 16. 

y£/a* ^ &f^/ Delivery is then not of the eflence of a pawn in the i 

~^ Y&&* e ^' la W j and other countries adopting the Roman law have con 

this, that if a pawn be not delivered, it (hall not afleft ; 

chafer for a valuable confideration : but if this had been th 

diftjn&ion, it would have no influence unlefs the Reman h 

yZj^Z+r**^ ca and an Engli/b mortgage were of the fame nature, whic 

^psrAj' ^ y^- are not > ^ or an hypotheca gave only a lien and no property 

*^' a right to be fatisfied on failure of the condition; a mo 

_ _' with us, is an immediate conveyance with a power to re 

#^j^ ^^* nd & ives a le ? al P ro F rt y- 

&*** r "' . * If a man gives an kypotheca or pignus with a condition 

-f- ^ fific**^ if the money is not paid at a day, the pavnee (hall enjoy the 

^/j at fuch a price, that is not in the nature of a pawn, but ; 

- Jujl. Cod. I. 4. t. 54. f. 2. Sifundum parentcs tui ea lege u 

runt : \juf\ftvc ip/i> five haredes eoruth anptori pretium quat, 

- , - que, vel intra cert a tempora oblulijfent, rejlitueretur \ teque 

* ' -* fatisfacere conditions dicla, hares emptors non paret, tit contra 

fa^^Ar.+r */&+<*+*> des/ervctur 9 aclio prefiript is verbis, vel ex vendito tibi dabitui 

4 ' . ^e^ft y-^a . bit a ratione eorum, qua pojl obi at am ex patio quantitatem ex et 

. . adverfarium pervenerunt. This is the defcription of an 1 

jb-4 /2 y^, mortgage in the Roman law, and as to the fale of movi 
' Cod. I. 4. t. 54«yi 7. Si a te comparavit //, cujus meminijfi % I 

*~/®+4 +++**?/+* venit % utji intra cert inn tempus folutafuerit data quant itas, n 
inemptay remitti hanc conventionem refcripto nojlro non ju 
its. Sedfsfe fubtrahat utjure dominii eandetn rem rets neat : dei 
t'sonis et obftgnationis dtpofitionifque remedio contra fraudetn po, 
tno confulere. 

All that can be argued from the Roman law with rej 
pawns will be foreign to the queflion, and fo will what r 
argued from the Englifb law with regard to pawns, for d 
is of the eflence of an Engli/b pawn, 5 H. 7. 1. Brt 
Pledges^ pi. 20. Title Trefpafs, pi. 271. and 2 R. Rep. 421 
no authority contradifts thefe refolutions. 

2 Leon. 30. and Telv. 164. are both cafes not of 
but of bailments to a third perfon, to fell for the ufe of 
tors: and it is true, that, in thefe cafes, the creditor wi 
an intereft in the performance of the contract, and may 1 
baillee. 

There is fcarce any book that treats upon pawns, but co 
them as in the pofleffion of the pawnee; as where it isc 
whether a pawn may be ufed ; and the difference laid do 1 
tween a pawn and a diftrefs is, that a diftrefs may not b 
becaufe the party in that cafe comes into pofleffion by aft < 
and in the other by the aft of the party. Owen 1 24. 2 
917. Sallt. 522. Coggs and Bernard. 

The diftinftion between mortgages and pawns is laid A 
Noy 137, and in Cro. Joe. 245, l. There is a difference 



•Banitupt if 

ng of lands mid pledging of goods ; for die mortgagee has an Ktaii h* 
intereft in the land, whereas the other has but a fpecial *°"«» 
in the goods to detain them for liis fecurity. Per Fleming 
aP 9 Sir John Ratctiffe verf. Davies. 
Iverton 178. The delivery is nothing but the bare cufto- 
t is not like to a mortgage ; for then he that ha* the in- 
ght to have the money, but in the cafe of a pledge, it is 
fpecial property in him that takes it, and the general 
continues in the firft owner, upon tender of the money 
3y the pawn, by the pawner, the property notwithftand- 
refufal, is reduced conftantly to the pawner without 
S. C. 2 Bulft. 30. 

lext queftion to be confidered, will be in relation to the 
1 of creditors where the debtor continues in pofleflion of 
s mortgaged : this was fraudulent at common law, and 
5//z. cap. $• fee* 1. 2. provides again ft it, that it Jhall be 
here is no diftinftion whether the fale be abfolute or 
lal : courts of equity and juries are to confider upon the r jrfg 1 
idence whether the conveyance was made with a view to *• J 

or not. 

icV does not extend to -conveyances upon good confider- 
llefs the circumftances have the appearance of a defign . 
e creditors 5 but where the goods or deeds have been left 
vendor lb notorioufly, as that there could be no defign to 
this has never been looked upon as fraudulent, 
's cafe, 3 Co. 80. is a leading cafe upon fraud on this 
: tran fa£l ion there was held fraudulent, though upon 
iftderation, for that it was not bonafide^ becaufe the ven- 
left in pofleflion, and traded upon the credit of the goods 
s hard to aflign a reafon why a buyer fliould leave goods 
ands of the feller, unlefs to give him a falfc appearance 
aftances and credit. 

; infilled, that there were feveral cafes that had made a 
m as to the pofleflion, after a conditional fale, betwixt 
ditional and an abfolute conveyance of lands and goods, 
(hew that the cafe of lands is not applicable. 
?. 226. 1 Ro. Rep. 3. refolved, That the grantor's 
1 of the land was not fraudulent •, but Lord Coke faid, 
the grantor had continued in pofleflion of the original 
at would have made it fraudulent. 
: on can be no other wife a badge of fraud, than as it is 
d to deceive creditors : as to the pofleflion of goods, I 
way of coming to the knowledge of the owner, but by 
ho is in pofleflion of them ; but the poftbfliou of land is 
rent nature, for a man may be in pofleflion of lands, as 
at will 9 as a mortgagor is, to the mortgagee, before the 
1 broken. 

chafer may call for the title deeds, and need not be de- 
hlefs he will : but this is not the cafe of goods, where 
left in the pofleflion of the feller : a fecond mortgagee 
rer be compelled to difcover his title, 3 Will. 230. (a). ( a )Head*. 
■ v*. ■ - M 4 . becaufe Egtrton. 



*JU tl *' b ecau fe tnc faft mortgagee has contributed to draw him in 
leaving his title deeds in the mortgagor's hands. 

There may be a cafe as in Eq. Caf. Abr. yii.pl. 7. wl 
leaving title deeds with the mortgagor will not be conftrued ; 
badge of fraud, on account of the particular circumftances ( i 

aS"" 1 Vm A cafe was citcd Pr# Ch * 2 *S ^ Thcrc a fop™»P>t h 
ing (hipped goods of his own, borrowed money at 40 per 

and made a bill of fale of the goods to the' plaintiff*; the go 

were carried and fold abroad ; and upon a queftion betwixt 

particular vendee of thefe goods, and a judgment creditor of 

vendor's, Lord Cowper decreed in favour of the vendee ; he t( 

no diftin&ion betwixt conditional and abfolute fales, but foui 

ed his determination upon the fairnefs of the tranfa&ions ; 

words are, " That here was no pofleflion calculated to acquir 

" falfe credit," which is a plain declaration that a poflcflion 

calculated as to acquire a falfe credit, would have made the tra 

a£tion void. There is a further faying in the report, that i 

true, in cafe of a bankrupt, fuch keeping in pofleflion ai 

a fale, will make the fale void. 

[ 169 ] This muft mean fuch pofleflion as would give a falfe ere 

and all that is laid down there is, that a poflcflion to acquii 

'falfe credit, would make fuch a tranfa&ion void, otherwife n 

Maggot and Wills > 1 Raym. 286. and cafes in the time 
King William the Third, 1 59. From both thefe reports it appe 
that the cafe was fo defectively dated, that the court could fc 
no judgment upon it, but fent it back again for a new trial, ; 
the di&um of Lord Chief Juftice Holt is againft the cafe, 
which it was cited ; no notice of the ftatutes of bankrupts 1 
taken in the whole cafe; hut Holt takes it up, upon the fra 
and gives it as his opinion, that it was not fraudulent, and i 
very clear, that it was not the diftin£fcion betwixt a conditio 
and abfolute fale which weighed with him at all. He diftinguif 
betwixt a bill of fale to a landlord, and to any other creditor; 
that it was his opinion, that it was not fraudulent in the cafe c 
land lot d. From all thefe cafes it appears, that upc n the a 
ftruction of the ftatute of the 13th of Eliz* there is no room 
make a diftin&ion betwixt conditional and abfolute fales of goo 
if made to defraud creditors, but a court or jury are left to a 
fider of this from the circumftances of the cafe. 

The legiflature have thought neceflary to defcribe what px 
were a bankrupt's or not, and for this purpofe the 2 1 ft of Joe* 
was made, and by that a£t the tenth fe&ion, which is the p 
amble to the eleventh fe&ion, though it is printed with the I 
mer fe&ion, by miftake, fays, " And for that it often falls < 
u that many pcrfons, before they become bankrupts, do com 
" their goods to other men upon good confidcration, yet ftiB 
" keep the fame, and are reputed the owners thereof, and difp 
*' die fame as their own." 

Now merely confidering things in pofleflion, the mifcl 
was, that thefe perfons, before the ad, made over their goo 
and yet were fuffered to continue in pofleflion, as if the got 

(1) Pittfrv.RxJett, zrcm. 7 z6. S. C. Sec alfo the cafe of Jburlg v. Rmd, s J 
C£a. £*f. tfja 

W 



^imitntpt 169 

Were ftili their own ; and this was the thing intended to be reme- Utall «. 
died, and there is no diftin&ion made here between abfolute and ***•"• 
conditional (ales. 

Then eonfider the em&ing claufe, 

11 Be it ena£ted, that if at any time hereafter any perfon or 
"perfons (hall become bankrupt, and, at fuch times as they 
" fliaU fo become bankrupt, (hall, by the confent and permifiion 
« tithe true owner and proprietary, have in their pofleflion, order, 

and difpofition, any goods or chattels whereof they fhall be re* 
u puted owners, and take' upon them the fale, alteration, or dif- 
" pofition as owners, that in every fuch cafe the faid commif- 
tt Goners (hall have power to fell and difpofe the fame, as fully 
* as any other part of the bankrupt's cftate." 

It is not to be doubted but as the preamble makes no diftinc- 
tkm betwixt abfolute and conditional fales, fo the ena&ing 
daufe will take in the one, as well as the other. 

The only thing contended for is, whether the mortgagee (hall 
be confidered as the true owner, or the mortgagor, and there is no 
doubt the conditional vendee is the true owner or proprietary, and [ 170 J 
there is no reafon to make a diitin&ion between an abfolute and 
conditional vendee, but by confounding the difference betwixt 
fawns and mortgages. 

There might fome doubt arife, if this was the cafe of a pawn, 
*in the cafe 3 BuMr. 17. but it cannot be doubted in the cafe 
of a mortgage, for it is an immediate fale to the mortgagee ; and 
tho' the mortgagor may buy it again, or redeem by favour of a 
court of equity, yet, till then, the vendee is the abfolute proprietor. 

On a pawn, the pawn is complete by a delivery 5 but on a 
conditional or abfolute fale, the fale is compleat by the contract, 
and the party is intitled to a delivery of the goods as foon as he 
has paid the price. Salk. 113. Dyer 20. 203. 

If therefore a conditional vendee pays money, and does not in- 
fill upon a delivery of the goods, he confides in the credit of the 
lendor, and not in any real or particular fecurity, and ought to 
come in, under the commiflion, as much as any other perfon 
that places a confidence in the bankrupt, and not in any other 
fecurity. 

As there is no authority to warrant a diftin£tion betwixt ab- 
folute and conditional fales, fo there is a cafe that deflroys it. 
Sevens v. Sole in Chane. Trin. 1736 {a). A trader within die M ^** J57- 
ftatute having pofTeffion of a lcafehold eftatc, afligned it, and ,6,# * r * 3S%m 
Bade a bill of fale of three hoys redeemable. In May 1 73 1 he 
became a bankrupt, the defendants were the afiignees, and the 
plaintiff brought a bill to be paid his principrJ, £fr. or to fore- 
cbfe; and it was admitted that the leafehold was infufficient to 

a die plaintiff, but as to the hoys, it was infilled that as the 
rapt had continued in pofleflion of them, they were liable 
to the commiflion. 
Lord Talbot decreed upon this admifiion, that there fhould be 

1 finectpfure as to the leafehold, and that the plaintiff fhould 
le admitted under the commiflion, for fo much of his debt as 
it leafehold would not Satisfy ; and decreed that the money 

arifing 



17* T5at!ltt:upt. 

RTAtt *. arifing by the fale of the hoys (hould be applied to the payracr 
Rollk. f t j ic creditors under the commiffion. 

But it was ihfifted, that there has been a fubfequent cafe con 
trary to this, Bourne, aflignee of Peelt v. Dodfon, Dec. 4, 1 74c 
(•) Ante 154. in Chancery [a). It is fufficicnt to fay there was in that cafe n< 
iVcf. 361. judicial determination. Lord Chancel/or did then confider th 
inconveniences that might arife, if it (hould be held that fhip 
at fea, of which no pofloflion could be delivered till their return 
(hould be fubjeft to a bankruptcy. 

There was another cafe before Lord Hardivicke, Oclober 22 

(*)Ante 160. 1746. Brown v. HeathcoU (£). Williams and Holder, partner- 

iporcuU/ft*. indebted to Heathcote in 1200/. afligned their (hips to him, a* 

delivered over the charter-party, invoice, fcsfr. Williams becan 

a bankrupt, and the (hips came home, and it was contend* 

that as here was no delivery of the pofleflion, it was within fc] 

ftatutes ; but s Lord Hardivicke was mi a contrary opinion, 

every evidence of ownership was delivered over to the affigne< 

and all means were ufed to obtain an a&ual delivery as foon a, 

the (hips came home ; and that the ftatutc was defigred again/1 

thofe only, who had negle&ed fome a£l to put themfelves in 

£171 J pofleflion of the goods conveyed, and by that means had led 

other people into a deceit ; that there could be no confent or dif- 

fent % as to the pofleflion of (hips at fea, and fo not within die 

words of the aft, nor within the reafon of it, which was to 

hinder perfons from gaining a falie credit, for here the owner* 

had delivered over every evidence of ownerihip, and could no 

prove by any other means that they were owners. 

I mould think that the delivering over of the muniments was ' 
delivery of the (hip, as the delivery of the keys of a warchouf - 
is a delivery of the goods in it. 
Now to apply this to the two mortgages. 
That of Tomkins in 1723. 

And that of Stephens in 1738. __ 

• Thefe mortgages are of a leafe with fixtures and moveab 
goods*, as to the- fixtures, no body can remove them till tLr 
rhortgage is fatisfled, for though a leflee may remove fixture 
during his term, yet if he leafes his whole term, he cannot, a». 
more than a lcflbr during the term, and a (heriff may take the- 
in execution. Salt* 368. Po§le*s cafe. 

As to the ytenfils not fixed, they will come under the famecc^i 
fidcration a6 goods granted without a delivery of pofleflion. 

A leafe of an houfe with moveables, is only a gift •{ fcX 
utenfils during the term. Spencer's caje, 5 Co. 16, 17. I AnJL 4 

2. As to the ^xtureS) we need not confider them with regard 
to the mortgage in 1738, bocaufe they will be exempted by the 
firft mortgage 5 but as to the utenfils not fixed, they will (land in 
the fame condition as others. 

A partner is pofleffed per mie & per tout, (1) and therefore 
no adual delivery can be made to him ; but the offence agaiqft. 
the ftatutc is permitting one to continue in pofleflion, when, 
he has fold all the goods to another, who is thereby intUod tfe* 

(l) Wift t. Sty. t Vef. 242. 



■Banittupfc 17 * 

thepoflcffion of the entirety; and Stevens permitting Harvcjl Rtah. «• 
to continue as half owner of them, is the cafe mentioned in the * W ' L *» 
ftatutc. 

As to the mortgages of one-feventh fhare of the bankrupt's 
moiety of the partnerihip ftock, &c. in trade, before I go into 
the confideTation of this, I will confider the cafe of an align- 
ment of a mere chofecn aEtion. 

The fimpleft cafe is of a bond ; fuch chofe en atlion is affign- 
alle in equity, and not at common law. The reaion \s> becaufe 
the affignor can furnifti the afl\gnec with all the means of re- 
ducing it into podellion, for he can let him fue in his name ; 
why therefore is not the means of reducing any thing into pof- 
fcffion as neee'Tary, as the delivery of the thing itfelf in the other 
cafe? Suppofc a trader affijns over a !>ond, and the alh^nee j. tx- 
aits him to keep the bond in his potleffion, why fhould not that 
he within the mifchief of the itatutc ? 

A bond debt Is a chattel, though fome doubt has been made of 
this; but the doubt arifes from hence, not that they are no f * 
chattels, in their nature, but that they are not grantable to a 
common perfon -, but if they were granted to the king, they r 172 3 
touMpafs as chattels. Bro. Prerogative , 40. 3 Inft. 55. 

1 1 Go 1. F- nl and Sheldon's cafe,, the refolution there is, that 

perfonal actions are as well included within the word goods, as 

foods in po fie ill on ; therefore if a bond is a chattel, and the af- 

fyumenr is 1 conveyance of it, the bond being left in the hands 

°ftfcc a lienor, is -in his poffeflion, and he may aflign it to a fecond 

a CgncL, or may (hew it to any creditor, as an evidence of fo 

'nuch '^.oncy owing to him, and deceive him by it. And as he 

**** have it by no other means, but by the confent of the true 

•^fjfcri" equity, he may thank hi mfelf for it. 

In mortgages of lands poflelfion need not be delivered, but 
***e title deeds mud ; and fo fhould the deeds and fecuritics of 
c &sjesin ctthri. It is faid that a debt iu trade is a mere chofe in 
^kion, and will pafs by an alignment even the day before the 
. ^flignor becomes a bankrupt, as in the cafe of Small and 0udley 9 
J iVnu. 427. Mr; Juitice Burnet dated this cafe, and the rca- 
***n of the judgment. 

An obfervation was made, that this was an aflignment of a 
*Hare in another man's trade, and not in his own •, and the only 
*^afon of it might be, that here he could give no pofieifion. 
And a ftrefs was laid upon this. 

Every man in his own trade is in pofleflion of the chofes in 
^ftion that arife from his own goods, and can put another in 
pofleflion either by giving him the fecurities, or by admitting 
**im a partner for fuch a fhare. And it is no uncommon thing 
to argue againft affignees of a bankrupt from the nature of the 
goods, in refped to the chofes in adion arifing out of them, and 
^foinrefpe£l to the new goods or profits. And if this kind of 
*goment will prevail againft them, it ought to prevail in their 
fcfour. 

Soppofe goods are configned to a fa&or who fells them, and 

htteig the merchant for the money mud come in as a creditor 

°%dcr the commiflion ; but if the money is laid out in other 

tbefe goods will not be fubjeel to the bankrupt. 

l Sa!k. \ 



17* 



I 173 3 



< B«tl&tttpt 

t &#. 1 60. Suppofe, inftead of felling the goods for rea 
money, he fells for money payable at a future day, and brca 
before the day, if the affignces receive the money, it will be i 
the ufe of the merchant. Or fuppofe that the fador had tak 
notes for the goods, if his affignees receive die money up 
thefe notes, it will be to the merchant's ufe. This was dct< 
mined in the court of Common Pleas. Salmon and Scott, h 
16 G.2. 

By parity of reafon the rule will hold here, that as the fj 
cifick goods, by being left in the bankrupt's poffcflion, would 
fubjeft to the commiflion, fo muft the profits be in chofe* 
a&ion, arifing from thefe goods ; and therefore thefe mortgogi 
can come in only as general creditors. 

As to the lafl point, with regard to the alignment of H$ 
ve/l's whole moiety of the partnership flock in trade to Potto 
in truft for Stevens the other partner, it will either fall under t 
confideration of an aflignment to Potter, as a diftinfk perfon, 
of an aflignment dire £11 y to Stevens : and the confidering it 
either of thefe lights will not vary the determination of the cal 
for confidered as an alignment to Potter, it is difficult to £ 
why Harve/l, after he had conveyed over all his (hare of t 
partnerfhip trade, fhould continue ftill a&ing as the owner of 
unlefs it was done to acquire a delufive credit ; and confida 
as an aflignment to Stevens, his permitting Harveft to contin 
in poflefllon with him, will be conltrued as a fraud againft otl 
perfons. I apprehend that Stevens was the trtte owner of t 
moiety, and has permitted the bankrupt to continue in pofleffi 
of it, as if he was the true owner, and that Harveft has tali 
upon himfelf the difpofition of this moiety as the owner there 
and that this comes within the words, mifchief, and intent 
the ftatute of the zi Joe. 1. And if it was not to be fo a 
ftrued, what a door would it open to frauds ? 

But it is infilled, that partners in tranfa&ions with each otl 
have the partnerfhip (lock for a Security, but not more, oroth 
wife than in the cafe of flrangers, for whether a partner o\ 
ftranger lends money to the partnerfhip, they are to be firft fat 
fied out of the partnerfhip flock. 2 Ch. Rep* 117. Com* Gra\ 
& af con. Knight W al* 34 Car. 2. 2 Fern* 293, and 706. a 
3 Will. 1 80. which is as ftrong as any negative cafe can be ; 
then ftated,the cafe, and faid there the executor infifled upon 
right to retain as executor, but not as partner. 

It may be faid, that it will be laying trade under a great 1 
ftraint, if a trader cannot mortgage his goods or flock witho 
quitting trade : and to be fure cafes may occur, in which the 
may be an inconvenience, but the inconveniencies on the otb 
fide flrike me more ftrongly. 

A man ought to quit his trade, when he has no (lock to car 
it on j for if it is once eflahlifhed, that the friends of a fjnkii 
man may fecure themfelves by mortgages, upon every thirtg tl 
he has, without running any rifque, .commiffiong of bankrupt 
will be very ufelefs things. 

3 low 



'Bankrupt. 17* 



I mull therefore conclude, that thcfe mortgages of goods, &V. 
capable of a delivery, will be liable to the commiflion by force of 
tic ftatute of ax Joe. I. 



RTALL V a 
JUfcLK. 



Sir Thomas Parker*. Lord Chief Baron, made four queftions. 

\fty Whether any mortgage or fale upon condition, is within 
the ftatute of the 21 Joe. 1 ? 

idly, Whether mortgages or fales upon condition of fpecifick 
chattels, are within the ftatute? 

jdly, Whether mortgages, &c. of particular parts or (hares 
tf trade, are within the ftatute? 

4/A/7, Whether the mortgage of HarveJFs moiety to Potter, is 
within the ftatute? 

He laid the cafes of pawns and hypothecation out of the 
queftion. 

fraudulent deeds he faid, might be avoided at common law. 

By the 13 Eliz. cap. 5. they are alfo made void, with a pro- C 174 J 
tifo that this does not extend to conveyances made upon good 
confideration and bonifide. 

He cited Twine's cafe to fliew, that the tranfa&ion there was 
m bona fide. 

He then read the preamble to the claufe, and the enabling 
chine of the 21 Joe. i. 

This claufe, though it does not fpeak of fraud, was intended 
to prevent that falfe credit which is the deftru&ion of trade, and 
neant to give a further benefit to the creditors of a bankrupt, 
than was given to them by the 13 Eliz. cap. 7. 

It extends to conditional as well as abfolute conveyances, or 
tlfe a bankrupt might mortgage for almoft the whole value. 

The principal difficulty upon this cafe, arifes upon the words 

of the ftatute, by the confent and permiffion of the true owner p 

! and it is infifted that they are only applicable to abfolute, and not 

, to conditional fales, becaufe a mortgagor, having a right to re- 

j deem, is confidered as the true owner. 

But the words are put in oppofition to the falfe and pretended 
ownerfhip, the bankrupt appearing to have the true ownerfhip 
of die goods by the pojjejfion, and if a contrary conftru&ion was 
to take place, it would be fatal. 

This was determined in Stevens v. Socle, [a) the 5th of July (*) Ante r#. 
1736.- 

The fecond queftion is, Whether mortgages (or fales upon 
condition) of fpecifick chattels, are within this claufe ? 

It is allowed to be out of the queftion, that the ftock mort- 
Pged underwent changes, for there is no doubt, but the pro- 
duce is fubjeft to the mortgage of the (lock itfelf. 

ift, It maybe a queftion, Whether the bankrupt's goods only, 
* the goods of other perfons left with him for fafe cuftody, or 
I «i are within this claufe? 

fcfy, Whether any, and which of the goods arc within this 
I **fc? 
**' 

The 



*74 TBanfccupt 

*i»Zhs? ^ c cna ^ in g claufe fpcaks of ahy goods, the preamble fpeal 
only of the bankrupt's own goods. 

It is laid down ijo. 163. Palmer 48 5, on the conftruQic 
of the ftatutcof the 13 Eliz. That the preamble fliall not leitrai 
the ena&ing claufe. 

But I take it to be agreed, that if the nokreftraining the gen 
fality of the ena&ing claufe will be attended with an incomr 
nience, the preamble (hall re drain it : and this is the cafe hei 
for othcrwife merchants could not correfpond or carry on th« 
bufinefs without great danger, and great difficulty. 

The cafe of UApofic v. Le Plaiflrier, * Will. 31B. ws 
rightly determined, I have my account of it from a (hort note c 
Sir Edward Nortkey's (l). 

So in the cafe of Godfrey v. Futzo, 3 JP7//. 185. where Lan 
King took this difference ; when a merchant abroad, configns t< 
B. a merchant in London for the ufe of B. and draws on B. foi 
the goods, though the money is not paid, the property vcfts 
and they are the goods of B. the merchant here, and liable tt 
C 1 75 J his debts ; but where goods are configned to a factor, as a fcr 
vanr, no property vcfts in him, nor will the goods be liable' t< 
his bankruptcy (2). 
W Anuist, Ex parte Marjb, ift of Augujl 1744, (a) a bankrupt receive* 
5 » *" 600/. in money, goods, and pieces of plate, the property of hi 

wife, and, by deed before marriage, agreed that the fame flioul 
be fecured to truftces, for her feparate ufe, as if (he was a wi 
dow, and he gave a bond and warrant of attorney to confe 
judgment, and conveyed the plate to truftees in truft for thcb« 
nefit of the children by the. former huiband, and the wife a] 
pointed it by her will accordingly. 

It was ordered, that the children the petitioners mould be a« 
mitted to come in under the commiffion for the 600/. and tK 
the plate in the cuftody of the bankrupt mould be delivered 
- them ; for that the money, having no ear-mark, could not "* 
followed, but the plate might. 

In Copeman v. Gallant l Will. 3 1 4. I mull: own that Loj 
Chancellor Ctnvper exploded the notion of the preamble's g 
yerning the ena&ing claufe, and went upon another reafcr 
which was, that the aflignment was with an honeft intent, m 
to pay the debts of the affignor. I have great honour for Lc: 
Coivper : but though I approve of the decree, I cannot fubfaH 
to the rcafons of it ; for notwithftanding an honeft intent ** 
intitle a perfon to all due regard, yet an honeft intent can* 
take a cafe out of die claufe of the ftatute. 

Suppofc a perfon acted by commiffion only, could there 
any pretence to fay, that perfons who advance their money^ < 
advance it upon the credit of bis ftoclr, for to him the credit 
given? So where a perfon a£b partly upon his own ftock, alto 
partly as a fa&or. 

(1) See PoJ. 18*. 1 Vef. 365. 371. 586. Poft. 132. S. C. Mm t. C* 
Po}. 2 vol. 205. dell. Cowperaja. 

(a) Ex forte Dumas, z Vea. 585, 

*^» 

2 



■Bankrupt. 



m 



\ 



lilj, Whether any, smd which of the goods mentioned are Utah. *. 
within the claufe ; and whether any, and what pofleffion is re- * 01L *- 
juired to be delivered. 

The goods are, utenfils, hops, malt, fixtures to the freehold, 
md (lock in trade. 

As to the fixtures, they aye like trees, Hob. p. 173. Lord 
Chief Juftice Hobart fays, that by the gTant of the trees, by a 
tenant in fee fimple, they are abfolutely paiTed away from tlie 
grantor and his heirs, and veiled in the grantee, and go to his 
executors and adminiftrators, being, in the underftanding of the 
law, divided^ as chattels from the freehold, and the grantee hath 
power incident to, and implied from the grant to fell them when 
he will, without any other licence. 

Owen 49. An a&ion is maintainable there, for the trees were 
iwinitedto the land by the purchafe of the inheritance. 

To apply this, the fixtures had been feveral times mortgaged 
iiftinftly from the freehold, but were all reverted and re-unit- 
cd after that, and there was no occaiion to deliver them, but 
they would well pafs by the mortgage of the freehold to the 
Tomliti/s. 

I admit the cafe in Salt. 368. Pooled cafe, where it is laid 
down that thefc things may be taken in execution, but I think a f 176 1 
ttn&ion is to be made, for here they could not be removed by 
Harvejf) or, taken in execution, by reafon of the mortgagee's 
mtercft. And therefore I think the coppers and fixtures are 1U 
able to the Tomkim's mortgage. 
With regard to the utenfils, &c* not fixt. 
Where goods mortgaged are capable of an a&ual delivery, 
Acre ought to be an a£hial delivery ; but if they cannot be de- 
livered at the time of the contract, it will be fuflicient, if the mort- 
gagee has the documents and muniments delivered to him in or- 
*kr to reduce them into pofleffion. 

The delivery of a key, is the delivery of the pofleffion, ac- 
cording to the civil law. Dig. 41. /. 1. /. 9. p. 5. Fide />*- 
*W. And the cafe of Brown v. Heathcotc, mentioned by Mr. 
Juftice Burnet , turns upon this principle (0). 

It is objected, that the undivided fhare of the (lock, fcfr. in 
***&, will not admit of a feparate property, and feparate poflef- 
fion, and therefore that the pofleffion of the mortgagor is the 
poffeflion of the mortgagee. 

% It is true that partners have a joint (lock, but their pofleffion 
15 feveral, and the intereft is to fome purpofes feveral •, as if a 
•tariff feizes a joint ftock for a feparate debt, he cannot fell the 
w tole. 2 Mod. 279. 1 Show. 173. Sa/k. 392. Hey don v. 

I will now confider the cafes cited for the defendants. 1 Raym. 
*jto. Maggot v. Mills. The claufe of the ftatute of xhe 21 
I /*"• I. was not confidered in this cafe, and one would imagine 
\ £**Lord Chief Juftice. Ho/fs expreflion, that if the fale there 
l i^k* 11 maM * e to ** n y ot h*r perfon than the landlord, it would 
L 9$ been fraudulent? 
* * " I Raym. 



(s) Ante 170. 



176 'Banfctupt 

*tall «. i Raym. 724. Cole and Davis. This cafe admits of the fam 
*<>"**• obfervation as the other, and I have fome doubt, whether it ws 
not compounded with a truft. And befides, the cafe was nx 
within the 21 Jac. 1. becaufe the fale was by the flieriff, an 
not by the party, fo that he did not take upon him tfee fale an. 
difpofition as owner* 

Small v. Dudley > 2 Will. 427. In this cafe the MafteT of th< 
Rolls diftinguifhed betwixt a man's own trade and the trade oi 
another perfon, and the reafon of that was, becaufe the bank* 
rupt was not in pofleffion, and could not deliver the goods, 
and unlefs they could pafs by aflignment, they could not paft 
at all. 

Buchnal v. Royflon, Pr.Qh. 285. Was a bill of fale of the 
produce of a cargo going to fea, and it depended folelyon the 
law of merchants, for there was no bankruptcy in that cafe, and 
Lord Cowper fays, that in the cafe of a bankrupt, fuch keeping 
pofleffion after a fale, will make the fale void againft creditors, 
fo that this is an authority rather againft the defendants, than 
for them. 

In the prefent cafe, the pofleffion of the goods was not deli- 
vered, though capable of delivery, and the bankrupt had the 
evidence of the partnerfhip in his hands, and a&ed as owner % 
and the mortgage was a fecret to every body but the parties; b 
[ 177 2 that *M th c circumftances mentioned in the ad concur to bring 
this cafe within it, and confequently I think thefe are things lia- 
ble to the bankruptcy. 

The third queftion is, Whether fales or mortgages, on con- 
dition, of particular parts or (hares of trade, and the produce of 
trade are within this claufe. 

I (hall confine myfelf here to things in a8lion y as fuch mort- 
gages are like fo much of the balance mortgaged. 

It is objeded that this claufe does not extend to things hi 
action, becaufe it fpcaks only of things in the pofleffion of thr 
bankrupt at the time of the mortgage. 

But chattels comprehend things in aftion. Slade's cafe, 4 CW 
95. a. Things in a£tion are goods and chattels in a perfon at- 1 
tainted. Lit. Rep. 86. 12 Co. 1. 

If goods and chattels will comprehend things in a&ion, in A*: 
confirmation of any aft of parliament, they ought much more W 
do fo in this, for otherwife a trader might cheat his creditors bf 4 
afligning over fuch things ; and this is enforced by the firft daufel 
of the ad, where it is provided, that every thing {hall be conftm-' 
ed mofFbeneficially for the creditors. * 1 

It is further obje&ed, that things in a&ion are not aflignable , 
but in equity, and do not admit of a delivery. 

If a bond is afligned, the bond mud be delivered, and notict 

muft be given to the debtor •, but in alignments of book debta.4 

• notice alone is fufficient, becaufe there can be no delivery \ nm 

fuch a£ts arc equal to a delivery of goods which are capable ol 

delivery. 



Q5fm&rtipt. 177 

\ /. I. /. 1. f. 2. par.y. fays, Things incorporeal, fuch Ryaliv. 
cannot properly be delivered. This is to (hew the na- Rqll ** 
iffignments of debts by notice to the debtor, 
laufe therefore extends to things in aEl'wn, and all has 
done that might have been done by the aflignee to veft 
of them" in himfelf, and to take away from the bank- 
power and difpofition of them, for no notiqe has been 
he debtors. 

>urth queftion is, Whether the mortgage of William 
moiety of the partnerfliip ftock and trade be within this 
ind this is the mod difficult queftion. 
>jefted that though Potter did not take pofleflion, yet 
lerely a nominee for Stevens, and that Stevens being 
before, was in pofleflion as partner per mie et per 

'. queftion ftill remains, Whether, when Stevens became 
• the whole ftock, he fliould not have taken the fole 
exclufive of Harvejl, in order to take the mortgage out 
tute? And I think he ought to have taken pofleflion of 

:ording to the (zSt in this cafe, Harvejl at the time 
ikruptcy continued, and appeared to be, in pofieflion 
oiety of the partnerfliip ftock, &c. by the confent of 

s faid that the law will conftrue Stevens tote in poflef- 

ling to his right. 

is no reafon for fuch a conftruftion, as Stevens fufFered f 178 1 

continue to aft inconfiftently with his right, 
r difficulty is, that the partnerfliip ftock is in the firft 
: to the partnerfliip account, according to the authority 
e of Pyke v. Crofts, 3 Wms. 180, and that this is no 

applying the partnerfliip fund, which was to pay the 
p creditors, to the ufe of a partner who has made them 
ion another way ; as where one of the partners is 
ith more than he ought to be, equity gives him a lien 
tnerftiip ftock to rcimburfe himfelf. 
s is not applicable to the prefent cafe, becaufe Harvejl 
rrow any of the partnerfliip money, or imbezil any of 
irihip efFcfts ; nor was the tranfaftion a partner- 
aftion, or the money lent upon the partnerfliip ac- 
ind this principle of equity has never been extend- 
f ate loans, but it has always been confined to part- 
anfaftions, and I think it proper it fliould be fo 



hiefju/tice Lee : I agree with Mr. Juftice Burnet, that 
ities are to be confidercd as mortgages, and I ftiall con- 
in that light. 

men law it was left to the jury to confider, whether 
es of this fort were fraudulent againft creditors or not* 

t '■ N ThU 



173 'Bankrupt 

RrALt t. This cafe muft be determined upon the ftatute of 21 Jac. \ 
*oili. ij^g j ^ of E/iz. is only declaratory of the common law, an 
as all the cafes upon that ftatute have been fully anfwered by thi 
Chief Baron and Mr. Jufticc Burnet, I (hall fay nothing more 
upon thefe cafes, or upon that ftatute, but (hall confine myfcll 
to the 2 x ft of Jac. 1 . becaufe I think that there the line is drawnj 
and the certi fines are to be found there. 

The queftion will be, 

ill, Whether the mortgagee is not the true owner to whom 
there (hould have been a delivery ? 

adly, Whether the debts and chofes in a£Hon (hould not 
have been delivered as far as they were capable of delivery ? 

3dlv, Whether Stevens has had fuch a pofleflion, as will ex- 
empt him from being confidered as an owner, by whofe confetf 
the bankrupt has had goods and chattels in his poffeflion, and 
taken upon him the difpofition thereof ? 

By goods and chattels I mean fuch as were fixed to the fa» 
hold, and might be fevered when the mortgage was fatisficd.. 

The general preamble to this ftatute fays, that feverai defeQi 
had been foutid in the former ftatute, and that one of thenuw* 
in the power given to the commiflioners for the difcovery a&4 
diftributing of the bankrupt's eftate. The particular preaxnU 
to this claufe recites, " That perfons before they become bank 
«' rupts do convey their goods to other men upon good cob 
" fideration, yet (till do keep the fame, and are reputed ik 
u owners thereof and difpofe the fame as their own." 

The claufe now in queftion is the provifion againft this atf 
chief, and every word is to be confidered ; this cafe is withi 
[ *79 1 the preamble, for the bankrupt has conveyed the goods to d| 
mortgagee ; and as this falls within the words of the preamble 
there is no occafion to give any opinion whether the preamble i 
to reftrain the ena&ing claufe or not. By the 13 Elba, rap* j 
there was an exprefs provifo, that it was' not to extend to col 
veyances bon&fide ; and this was the difficulty for the coounjl 
doners to difcover. 

I apprehend that the diredion there given, that if any pedq 
(hall become a bankrupt, and have in his poffeflion goods, Hj 
was to remedy the inconvenience that arofe in injuries upon fb 
former ftatute, whether the (ale was bond fide or not, by malpn 
the reputed ownerihip of the bankrupt, the real ownerfhip i 
him for the benefit of his creditors, becaufe if the true owner ftj 
fers the bankrupt to become the reputed owner, he deprives hjgi 
felfof the benefit of his conveyance, and the bankrupt haviq 
gained a credit by his means, and hurt his other creditors, ft 
fliall be in no better condition than they are. 

Is the mortgagee then the true owner ? 

The ax Jac. ufi 13. defcribes the mortgage in thefe wadft 
€i If any perfon that becomes a bankrupt (hall convey or afigji 
" life, any lands, tenements, hereditaments, goods, chatteWl 
« other eftate, unto any perfon upon condition or power ofA 
" demption at a day to come, by payment of money or QtM 
"wife," " ■• -3 



OBantoupt. *79 

This is the dcfcriptlon that the ftatute has made of a mort- R ^" £ J # 
gage, not only of land, but of goods upon condition. Co. Lit* 
2io« a. If a man makes a feoffment in fee, upon condition that 
Ac feoffee (hall pay the feoffor, his heirs or afligns, 20/. at fuch 

I day, and before the day the feoffor makes his executors and 
dies, the feoffee may pay the fame either to the heir or the exe- 
cutors, for the executors are his affignees in law to this intent. 

But if a man make a feoffment in fee, upon condition that if 
the feoffor pay to the feoffee, his heirs or afligns, 20/. before 
Rich a feaft, and before the feaft the feoffee maketh his exe- 
mtors and dieth, the feoffor ought to pay the money to the heir 
tod not to the executors ; for the executors in this cafe are no 
iffignecs in law, and the reafon of this difference is given in the 
wok, that the feoffor hath but a bare condition, and no eftate 

II the land which he can affign over -, but in the other cafe the , 
coffee hath an eftate in the land that he may affign over, which 

1 in other words faying, that the mortgagee is the owner, and 
m the intereft in him ; and 2 Cro. 244. cited by Mr. Jufticc 
Burnet, as to the difference between a pawn and a mortgage, 
pes to the fame matter. 

The difference taken betwixt conditional and abfohate fales, 
tnd the cafes thereon, have been obferved upon already. I Xhall 
inly mention one of them. Stone and Gra/bon^ 2 Buljt. 206. 
Fhat cafe was a condition upon a future con ii deration. The 
voids of Lord Coke which are relied upon are, that the poffcuion 
rf the mortgagor was not fraudulent, but if it had been an ab- 
fahtte conveyance, it would have been fraudulent. 

I look upon this eafe to have been determined intirely upon [180"] 
ke ftatute of 13 Elix. c. 5. and the common law, the plan of 
riuch ftatute differs from that of the 21 Jac. 1. It is againft 
fraudulent conveyances, with a provifo in favour of conveyances - 

\mijuUj whereas the a& of the 21 Jac* 1. fuppofes a fair con- 
veyance, but deprives the party of any preference, becaufe he 
teg not give proper notice of his conveyance, and it feems to 
■c that the cafes upon this ftatute are more like the cafes that 
•qr happen upon the regiftring a£ts, where a perfon does not 
JtpftcT, and fo lofes the priority of the fecurity: fo here the 
■Dee is not to fuflfer the donor to continue in fnch a poffeffion, as 
■ prefcribed againft by the aft. And though the cafe .cited is 
tat material to the point in queftion, yet I think nothing of 
Wat was (aid in that cafe eftablifhcs a difference betwixt a 
Conditional and abfolute fale ; yet it is material, that a mort- 
tagor, who continues in poffeffion, is before the condition bro- 
ken tenant at will to the mortgagee, which (hews that the mort- 
pfpt muft be confidered as the true owner of the land. 

As to the other cafes cited to eftablifh this difference betwixt 
BOaditional and abfolute fales, I fhall not go over them again, 
becaoie they have been fully anfwered. 

Stevens v. Sale, (a) 5th of July 1736, is a cafe in point on a («) Amu 157. 
|Mgage of a perfonal thing, and Lord Cowper\ faying in the 
' cafe is an authority upon this queftion, though upon an- 
— *"ll for be fays in Bitchnall and Roy/lm, Pr. Ch. 287. 

N a. Tta 



>*° •Baffltrupt. 



Ryall t. 

RoLLX. 



That " fuch a keeping pofleflion after a fale as is dcfcribed 1 
" the 21 Jac. i. which is a pofleflion with the liberty oft] 
c< difpofiug the goods as his own, would make the bankrupi 
€i fale void againft his creditors by the ftatute : this cafe thcr< 
€ * fore muft be confidered as an authority to the fame purpoi 
" with that determined by Lord Talbot, and both determine ti 
** queftion with regard to fpecifick goods." 

I am of opinion, it will be the fame as to the (hares of tb< 
partnerfliip dock, partly in pofleflion, and partly in aflion, am 
as to all chofes in a&ion, as debts capable of being afligned in % 
court of equity. Some books indeed, as Swinb. p. 498. edition 
the 6th, feem to countenance an opinion that goods do not in- 
elude bonds, lie. For notwithftanding he fays, that by goodi 
the civil law underftands not only things in pofleflion, but alfo 
things for which a lawful a&ion may be had ; yet in the fame 
page he lays it down, that, by the laws of this realm, die word 
goods is otherwife underftood, and never includes things whicl 
are of the nature of freehold, nor things in a£Uon, as a debt 
upon a promife, or obligation (1). So Cayle's cafe, 8 Co, 321 
carries fome appearance of the like opinion, where it is faidj 
that an innkeeper is anfwerable for the lofs of a bond, being 
obliged to keep the goods and chattels of his gueft, for though 
it is there faid that goods and chattels do not properly compre- 
hend charters and evidences concerning a freehold, or inheri- 
[ 181 ] tanoe, or obligations, or other deeds or fpecialties being things 
in aftion, and yet, in this, cafe, the writ againft an hoftler or 
innkeeper is expounded to extend to them: I apprehend that thefc 
opinions were grounded upon the notion, that chofes in aclion 
did not pafe even by ftatute, any more than they were grant- 
able by a bargain and fale, &c. but there are fo many authori- 
ties to contradict them, that I take that point to be fettled. 

A corporation cannot take a recognizance or obligation in 
their publick capacity, becaufe they cannot take a chattel* 
Catalla comprehends a right of aftion, and is the only word in 
the ftatute to give this right. 12 Co. p. i. b. Ford and Sheldon 9 * 
cafe. This point was in queftion, whether chofes in aftioa 
come under the word goods, and it is there faid, that perfonal 
aclions are as well included within this word goods, in an ad <rf 
parliament, as goods in pofleflion. 

It goods and /-battels, in the ftatute, include, chofes in a£fa # 0Oj 

1 all tilings arifing from the fale of the joint ftock arc fubjeft to 

the aflignce6, as they follow the nature of the goods themfelveft 

and Mr. Jufticc Burnet has cited cafes to fliew that they arc io§ 

where the thing can be difcovered. 

Sivynb. 506. 6th edition, is upon the fame foundation: If* 
man devifes his moveable goods to B. and his immoveable to C. ( 
Upon a queftion how the debts (hall go ? He fays, thofe dcbtK 
which did arife by occafion of the things moveable, and for Ad 
recovery whereof tlverc lies an aftion. perfonal, belong to tbt! 
pcribn to whom the teftator did bequeath his moveable goodi|< 

£l) See Chapman v. Hart, l Ftf. 273. Moore v. Moore, 1 Bto. Cba. Rep* 1 27V 



bankrupt isi 

lews that the produce of the goods were of the fame \ PAlt T * 
ith the goods themfclvcs. 0LL ** 

Stroens's mortgage, it being made to Potter in truft for 
it is to be considered as a mortgage to Stevens j and as 
bje&ion that Stevens, being in poflefiion, wanted no 
^flion to be delivered, the anfwer has been given, That 
lad the poflefiion with the confent of the true owner, 
ought not to have had. 

'. Pykt, 3 Will. 1 80. is the cafe that was called a ne- 
ic 

h this has been no where determined 5 yet one may 
ition from a Civil law book, not as an authority upon 
judgment is to be founded, as it has not been re- 
re, but as the opinion of learned men, and for this 
: cited Blachborough and Davis from a manufcript 
ere Lord Chief Juftice Holt advances the fame thing, 
nrefore mention Domat. lib. l.fo. 155. where he fays, 
ing by the partnership, and their other charges, are 
le out of the common (lock; otherwife as to the money 
by a partner which has not been applied to the com- 
c« 

ion this to prove that the partnerfhip ftock is no fur- 
& to debts from one partner to another, than as the 
s been applied to the partnerfhip trade. » 

he whole," the ftati t: is the rule to be followed in this [ 182 J 
intent of it was to prevent bankrupts from acquiring 
dit, and to puniih accc (Tories by the lofs of the priority 
ebts. Whether this was a wife provifion or not, is 
now to determine, it mud be followed as long as the 
ues in force. 

Jardwiche Chancellor : this is a queflion of great con- 
I will endeavour to reduce die grounds I go upon to 
ral heads. 

hether any mortgage or conditional difpofition or 
:e of any goods and chattels is within the 21 Jac. 1. 
o, II. 

: any is, whether the prefent mortgages, and which 

re fo ? 

Aether the mortgagee of the moiety of the partner- 

k, Wr. is within the aft ? 

hether any mortgages, or conditional conveyances of 

within the act ? 

this general queflion, I (hall not enter into. a particu* 

ition of the two points made at the bar. 

he ena&ing claurfe extends to all goods in the cuftody 

krupt, whether his own originally or not, or whether 

reftrained by the preamble, to goods only, that were 

the bankrupt's. 

y, Whether chofes in a&ion are within the claufe ? 

N 3 For 



xS2 Xanfetupt. 

RyAt v. For as to the firft, the Chief Baron has entered fo far into tl 

RoLLE * conftruftion of it, as not to leave any room for doubt: ho\ 
ever, let the conftruftion be what it will, the prefent cafe, as 
this point, is within the aft, becaufe it is not difputed but tfc; 
all the goods here in queftion were originally the bankrupt 
and were mortgaged by him. 

But (till in this* refpeft I (hall not fcruple to declare that 

am ftrongly inclined to be of opinion with Lord Chief Juftio 

Holt, and my Lord Chief Baron, that this claufe is to be re 

. ftrained by the. preamble, and differ from Lord Cowper in th 

cafe of Copeman v. Gallant, i Will* 314. (1). 

As to the other point, it has been fully cleared up, that cheft 
in action are properly within the description of goods and chat 
tels in this claufe* 

But I will add one argument: It is that the conftru&ioi 
which has been put upon this claufe is fupported by the nex 
immediate precedent claufe in the aft, it relates to bankrupts 
who by fraud make themfelves accomptants to the king to de 
feat their creditors, where there is a power given to the comif 
fioners, to difpofe of all lands, tenements, hereditaments, good! 
chattels, and debts of the bankrupt fo extended, to and for th 
ufe of the creditors, and yet, when it comes to the provifion, i 
refts intirely upon the words lands, tenement j, goods and ckatteh 
and was defigned to comprehend all kind of perfonal property 
whether in pofleflion or atlion only. 
[ 183 ] In 12 Co. Ford and Sheldon's cafe, it is laid down, that in ai 

aft of parliament the words goods and chattels take in chofes u 
aftion, and the contrary opinion fcems to have arifen upoi 
queftions on grants, and bargains and fales, by which the 
could not pafs ; but an aft of parliament, which may pafs an 
tiling, will take in the whole. 

The aim of the legiflature in all ftatutes concerning bankrupt 
was, that the creditors (hould have an equal proportion of th 
bankrupt's eflfefts as far as poflible. 

And it was intended that this aft (hould be conftrued benefi 

cially for the general creditors, and it is fo declared in an un 

ufual manner in the firft claufe of the aft. 

The general The general view of the provifion now under coniidcn 

view of the pro- tion, was to prevent traders from gaining a delufive credit froi 

IIilrtbnTtopre- a ^c a PP cara nce of their circumftanccs, to the mifleadingan 

vent traders from deceit of thofe who (hould trade with them, and the legUtatnf 

gaining a delufive thought they had done this by fubjefting all things remaioin 

ftffeappcawnce * n ^ c pofleflion of the bankrupt, to the creditors under th 

of their circum- commiflion, becaufe where the vendee leaves the goods bougi 

ftances. j n j^ p fleffion f xh c bankrupt, he confides as much in th 

general credit of the bankrupt^ as that creditor who has take 

only a bond or note. 

(0 So ante 174, 175. 1 ^365,371. 1 ^243. See Cr*fpigny v. fTttimm 
Lord Hardiuickt fecms a!fo to have been 4 Dur*. and Eqft, 793. 
of the fame opinion, in Weft v. Skip, 

1 



roort- 
parr- 



TBanJtntpt. 183 

In fuch cafes, the bankrupt had it in his power to fell all the Ryall *. 
goods the next hour, and the vendee or affignee could not claim RoL ". 
them from the buyer, but could only have a perfonal remedy 
againft the bankrupt. 

All this holds as well in the cafe of conditioAal, as of abfolute The ftatute of 
files, and if the court (hould make a different determination, it ^21^. i.r. 
would be contrary to the cafe of Stephens v. Sole, determined by conditional J° 
Lord Talbot y and to Buchland v. Roy/Ion, by Lord Cotuper, and well as abfolutt 
to the implied opinion of the laft in Copeman v. Gallant. ***•'• 

Ichufe to forbear obferving upon the words of the claufe, be- 
caufe that has been done already. 

The legiflature has explained it's fenfe by putting the words 
> tnewner, in oppofition to the reputed owner. 

The 2d queftion is, Whether any, and which, of the mort- 
gages are within the ftatute ? 

According to the authority of the cafes which have been men- a fliar* of the 
tioned the mortgages of the 10th Dec. 1737, and of the 6th partner/hip 
«d 7 th of Sept. 1738, and fo much of the affignment to ^£*' 
Stoens, as relates to the ytenfils not fixt to the freehold, and ncr, muftbed* 
-aHb the mortgage of the 6th of March 1778, arc within the leered, or it u 

ift.. , . j j -j L •* a dclufive credit 

: fctnte, and made void by it. . ^ Uh wilhiII 

the ftatute of th« 

If it was to be laid down, that a (hare of the partnerfhip 2I 7 M ' ue ' x 9- 
Mt 9 lie. mortgaged to a partner, is not neceflary to be de- 
fered, it would let in all the inconveniencie3 which were to be 
ftercnted by this ftatute. 

# As to chofes in a&ion, equity ought to follow the law; if it The provisions in 
;fas not, infinite mifchief would follow. It is eafy to turn a Ae * ' J a < '• »; c • 
igal into an equitable intereft, and if parliamentary provifions *&{&& \ e ^\ 
* to a legal intereft were not to be followed as to equitable in- intm-fts, muft 
teefts, it would defeat the aft. ~ Thus upon the Popifti ads, * e J^ e * n * ? 
bt penal, the confiderations and rules are the fame in equity Thpin^foT' 

ft at law. therefore within 

It was faid, that the mortgages to Potter for the benefit of Jewing of 
«ftw, mint be conudered as a mortgage to Stevens y and it may included in the 
•generally right to confider it fo; though yet, as a judge in wo «is good: and 
nnity, I am inclined to carry it farther than the judges at com- c atteh ' 
:%to law have done; for whatever intereft palled of the perfonal [ # i 84 1 
4mg$, pafled in law to Potter \ and if the cafe had been at com- 
ton law, a court of law would not have taken any notice of the 
kift for Stevens, and then by the ftatute this affignment had been 
taid at law againft the^commfffioners^ and a court of equity would 
lever fet it up. here. 

And therefore I make a difference betwixt fuch things as, 
King affignable only in equity, gave no title to Potter at laV; 
bras to thefe the mortgage is to be confidered as being made 
Ete&ly to Stevens y but as to thofe things, in which an intereft 
died at common law to Potter^ I think Potter is to be confider- 
I as having the legal property. 

N 4 As 



1 84 OSanfctupt 

Kyallv. As to the queftion, whether partnerfliip (lock is to befii 
f 0tt , 8 ' liable to the debts of the partners, it was never carried forth 
ihipaockVlb- than to debts contrafted relative to the partnerfhip, either aft 
Wctothoiebtsof the bankruptcy, or death of one of the parties. 

partners in the 

"Where one part- Where apartner lends money to another generally, and it 
ncr lend- mooey not entered in the partnerfhip books, it is faid he gains a fpe< 

ne^encVu*?" ^ c lien u P on ^ e * are °^ ^ e Grower, and ma M b* preferred 
•ndftiTaot^ feparate creditors; but I find no foundation for this, after 
entered in the bankruptcy, nor after the death of a partner, where his effd 
EST he P doci have bcC0I " e fubjeft to the rule of diitributing affets. Wli 
not gain a fpeci- equity there may be between partners themfelves, on fettling 
fie Uei upon the account, is another thing, 
are o tne or- Q r ofts vcrf. Pyke 9 3 Wms* 1 50, is as ftrong a negative cafe 



this purpofe as can be ; all that was contended for there, beii 
that he might retain as executor. 

If it (hould be determined that one partner (hould gain a fp 

cifick lien, by hnding money to the other upon the partnerih 

Rock, it would open a door to great frsui, and give a ihock 

- this aft, which is made on purpofe to prevent, a falfe and deli 

five credit. 

I will take notice of one thing mentioned by Mr. Jttftk 
Burnet, and the Chief Juflice. 

It has been faid in this caufe, that great mifchief might arifct 
trade and credit from making fecuritics of this kind void, be 
caufe it might prevent perfons from ufing their credit in trade 
and that they will not be able to make a fecurity, without expo! 
ing their circumftances to the world, which may hurt their credii 

On the other fide it has been argued, that a delufive credit i 
ftill of more dangerous confequencc. 
t 185 ] I will not fay but fome inconveniencies may arife on cat 

• ; part ; but I agree with the Chief Juflice, that, as it is a law, i 

muft be adhered to, and we cannot depart from it. If any fa 
convenience docs arife, it is for die confideration of the legilla 
ture whether it ought to be allowed or not. 

But this I will fay, that very great inconveniences may arfl 

by giving an opportunity to people to make fuch fecuritiei 

and yet appear to the world as if they had the owner (hip of al 

.- '»••'. thofe goods of which they are in pofleflion, when perhaps the] 

have not one (hilling of the property in them. 

And further I will venture to fay, that it was the defign of tii 
tlOl of parliament to prevent this ; for the act was made in d* 
fimplicity of former times, long before thofe large and ah] 
notions of credit prevailed, which have been fince introduced. 

This a& is a law, and I concur with my Lords the Judges fl 
the opinion that they have given, and the conftru&ion that the; 
have put upon it ; and do therefore determine that thefc mofft 
gages and fecuritics are not a lien upon the bankrupt's eflate(l) 

^(i) Edwards v. Rarhtn % 2 Durn. & See alfo Falhner v. Cafe* 1 Bri. Ch 
Eaft, 587. Bamfordv. Barou, ibid* 594. Rep. 125, 2 Dunu fc? Eajl, Rgf. 491 



TSattfctupt. 185 

[ E caufe coming on again for dlreftiont and a quef- TdmHtry the 
ton arifing, whether a debt could be fct off within the ** ' * 7 * 9 ' 
n of the ttatutes of bankrupts ? \ v g 375-S.C. 

Chancellor faid, that under the aft of the 5th of George Aperfonmayfec 
ond, perfons might fct off debts, as tha,t act extended to off "debt under 
ual debts, though independent of, and not relative to the J^^J, 1 "*? 

credit between the bankrupt and other perfons in the relative to^the"* 
3f trade, and though the debts were of fuch a nature as mut "»i credit 
iot be brought into a general account (1). th^nk™^ 4 

( 1 ) Billon v. Hyde, ante 1 26. 

Petition of Richard JTlyn and Richard Field, Merchants, f"/"^ the 
in the Bankruptcy of Hugh Mathews. 4 * !rzl jf 

I E petitioners being at Liverpool the beginning of Jttfy* Qzkm' 
(aft, and purpofmg to be concerned together in purchafing Q jf 
ion tar, they found on enquiry a quantity thereof to the t ^ t .'/jxc pel 
r.t of 500 barrels lying on the quay of Liverpool \ which 'itioners two 
Mathews, a merchant of that town, had then imported for JJ!JJ^£ C ° t b £[ 
thereupon the petitioners and Mathews came to an agree- me of 9?' per 
3gether on the 8 th of July? whereby Mathews fold to the b ^-cl, and the 
lcrs two-thirds of 500 barrels of the faid tar at the rate or agrecdXottt be 
- barrel, and the other third he agreed fhould go and be consigned tope- 
led to the petitioners for fale at his rifque, on his own ac- titio ? ei ? for fate 
and that he fhould be at the charge of cartage and p >r- *^, d onhlTSwa 
and (hipping off the faid 500 barrels of tar, and that the account, and 
lcrs fhould fell his fharc of tar free from charges of tU ' ,le '2 WMW * 

o at the charge of 

illOIK cartage" and por- 

terage, and ihip- 
he whole, and Mathews accordingly caufed the tar to be put into a warehoufe of his own, far 
&fes of the agreement: Petitioners at the fame time paid Matbewt in London bills 150/. the 
•f two-thirds,. and Mathews made them out a bill of parcels. Mathews arVrwards becomeja 
:, and the aflignces take poiTcfiion of the tar, as they found it remaining in his warehoufe. 
ot within the intent of the 21 of Jac. 1. ch. 19. which meant to guard againli leaving goods,in 
ten, order, and difp-ftion of bankrupts j but here was only a mere temporary cuilody, till the 
rs had a . opportunity of fhipping it off to Ireland* The petitioners intitled to two-thirds of t 
the ajfignees ordered to deliver the fame accordingly. '^faeS&a^Z*' 

d it was further agreed that the faid tar fhould be removed [*i86* ] 

fie quay, and lodged in a warehoufe until the petitioners 'ff C /. t .4*&6> &**> 

give orders for the (hipping the fame off as opportunity j£ ^, ^fd/, 

I, they having none at that time; and accordingly Mathews'' - — 

the faid tar to be put into a warehoufe or cellar of his own, for £/■/£***&. {flr*-^ 

fofes of the faid agreement. ^ ^ ^. 0.*0< 4> 

\ petitioners at the fame time paid Mathews in London fs 

or 15c/. being the amount of the value of the faid two- 

of the faid tar agreed for, Mathews alfo at the fame time 

out and delivered the petitioners a bill of parcels of the 

r, in the words and figures following : Liverpool, Sth July 

Meffrs. Richard Flynn and Richard Field, bought of Hugh 
rw% two-thirds of 500 barrels of plantation tar, at 9 s. per 

the whole amount 22 j 1. the whole to be fold bv faid gentlemen 

for 



4 86 •Bankrupt. 

Fiynv. f or account a^hllows, two-thirds their account 150 1. one-thirc 



Mau.£ws. 



it d^fo 



Hugh Mathews account 75 1. Hugh Mathews to tair charges y 
cartage and porterage in fending of 9 then received bills en London 
amount 1 50 1. when paid is in full of their part t 

per Hugh Mathews. 

Mathews the beginning of Augufl laft became a bankrupt, and 
the aflignees under the commiffion iflued againft him, have taken 
poffeflion of the faid tar as they found it remaining in his ware- 
houfe, and being doubtful whether they can deliver the fame, 
with fafety to themfelves, to the petitioners, the aflignees and 
Flyn and Field have agreed to be determined by Lord Chancellor 
on petition, which came on now before his Lordfhip for di- 
reftions. 

TI15 queftion arofe on the following claufes of the 21 of Jac. i« 
ch. 19. 

" For that it often fills out that many perfons > before they become 
" bankrupts, do convey their goods to other men upon good conftdera- 
€i tiotiy yet flil I do keep the fame, and are reputed the owners there- 
" cf, and difpofe of the fame as their own \ 

•' Be it enabled, that if at any time hereafter any perfon or 
" perfons (hall become bankrupt, and at fuch time as they fliaH 
" fo become bankrupted// by the confent and per miff on of the true 
" owner and proprietary have in their poffejfion, order and difpofition^ 
4< any goods or chattels, whereof they fhall be reputed owners^ and 
€i take upon them the fale, alteration, or difpofition as owners, 
" the commifiioners fhall have power to fell and difpofe thejame 
[ 187 ] " for the benefit of the creditors, which fhall feek relief by the 
" faid commiflion, as fully as any other part of the cftatc of 
" the bankrupt." 

Mr. Wildbraham for the ajfignees. 

There are two forts of perfons affe&ed by this claufe. -1 

1. Perfons who are purchafers of goods, though for a good j 
confideration, or true owners of goods, and who yet leave them 
in the hands of the bankrupt. 

2 dly, The creditors of bankrupts. 

The intent of this law was to prevent perfons intruding; 
traders with the poffeflion' of goods where they have not the 
property 5 poffeflion gives a fpecies of property, and a poffeflbrf 
property is a good property againft wrong-doers. The pbflefficMI 
always creates a prefumption of abfolute property, it makes %- 
man the vifible owncr^ this fpecious ownerfhip creates a credit*, 
and draws in innocent perfons to give credit upon the faith or . 
appearances •, if they arc falfe appearances, they are drawn in » : 
give credit to that which has no reality, but is merely fi&itious. 

This aft of parliament intends to remedy that inconvenience 
by preventing this pra&ice, and in order thereto impofes a pena^fs 
upon fuch pradice, whether it arifes from defign or inadfcrtr 
ency. 

Lord Chancellor : I think this cafe is not within the intent 
the a£t of parliament, which meant to guard againft leaving 
goods in the poffeJJ!on % order 9 and difpofition of bankrupts j buthefl 



% 



' bankrupt. 187 

: was merely e temporary cuftody, becaufe the petitioners, the TLrv *- . 
wyers of the tar, had not ah opportunity of felling it by (hipping Mathewi * 
t off im mediately to Ireland. 

It cannot with any propriety be faid the tar was in the order, 
Hfpofithftj or power of the bankrupt, and therefore not within the 
a& of parliament. 

Upon the foot of the agreement between the petitioners and 
Mathews, tin's is to be confidered as an undivided property, of 
vhkh they were tenants in common; there rr.uft be a poflcilion 
of thofe goods in one or other of them, and the poflcifion of one 
isthepofTefiion of all, and therefore the petitioners are intitled to 

two-thirds of the tar, and the aflignees muil deliver up the fame 
I to the petitioners (i). 

(l) SofTefi V. Skip, X Vef 239. 243. 456. Walker V. Burnel, Da**. 303. 

(X) Rule as to Copyholds under a CommiJJlon of Bankrupts. 
Drurj v. Man, furviving Aflignee of Johnfotf, a Bankrupt. 7*^ the 3<*> 
\ Vide under the Divifton, Rule as to AJfgnccs. 

P) Where AJfignees are liable to the fame Equity with the f jgg -i 
Bankrupt. L J 

Brown v. Jones and others. Gtf^r the* 5th, 

1/44- 

THE bill in this cafe was brought by the affiance under a q r 
commiffion of bankruptcy againft Roger Williams, to have _, ' , ^ 

Ir^i a - l 1 • i_ i_ 1 r u * Though the • 

•real cltate belonging to the bankrupt fold. court will favour 

The qucftions iu this caufe arofe upon a fettlement made by creditors, yet it 
*c bankrupt of this eftate upon his wife and children after mar- £"* £^ herc 

J*§C» fupci/or right to 

The Attorney General for the plaintiff ftated the fettlement to *>&-* peifou. 
Unlade on the 8th of Augujl 1732, between Roger Williams 
**d his wife, and Richard Blencoe, and the defendant Broivn, 
••d another ptrfon as truftees, recited to be in confideration of a 
*ttnriage already had, and the fum of 1000 A paid as a marriage 
Jortion to Williams by Blencoe, who was brother to his wife 
*>4 for fettling a jointure, and conveyed to the tnilees to the 
fatral ufes following: To Roger Williams for life, and from and 
*for the determination of that eftate to the truftees to preferve 
tontingent ufes during Roger Williams's life, and from and after 
■tdeceafe, to Elizabeth the wife for her jointure, and after the 
; ^ceafc of hufband and wife to the ufe of the truftees for and 
**ring 99 years, on fuch trufts as herein and hereafter exprefled, 
W after the determination of that eftate, to the firft and other 
*>* in tail male. 
Tkcre was no declaration of the ufes of the term of 99 ye^ars, 
t any receipt indorfed on the back of the fettlement ; and 41s 

there 



i8$ T5anfccupt. 

Bxowx v. there was no declaration of the truft of the 99 years term, 1 
jo.\£s. infilled the refulting ute or truft will revert to the hufband wl 
gave it, and therefore will enure for the benefit of the credito 
of the huihand. 

Mr. Brown of the fame fide. 

The circumftances of fraud in this cafe are very ftrong, th 
fettlement was not made till ten years after marriage; Roga 
IVMlams the hufband never thought of this deed or mentioned t 
on his laft examination, which is very fufpicious, and looks like 
a plank laid hold of to fave them from (hip wreck. 

Mr. Solicitor General for the defendants, the wife and chil- 
dren. 

Roger IVUlicms was no trader in 1 732, and die z€t of bankrupt* 
cy was not till fix years afterwards. 

If it was a mere voluntary fettlement, perhaps it could not b$ 

fupported againll the creditors ; but there are many agreement^ 

after marriage, which may be fupported as fair, and for valuable 

confideration. Scott v. Ball, 2 Lev. 70. , A queftion betweofi 

purchasers and the ilTue of the marriage, whether an agreemeflfjj 

after marriage was for a good and valuable confideration ? Loot* 

I 189 ] Chief Juftice Hale faid, the court in family agreements done*' 

nicely eftimate the value of the eftates, but only whether it i&li 

fair and honeft agreement. * 

The fa&s in the prefent cafe are fhortly thefe : Roger W\U 

Hams was feifed of this eftate in 1722, had only 150/. with his 

wife at that time, and no fettlement then made ; Mr. Blencoe 

her brother applied to Rcger Williams to make a provifionforlud 

filler ; Roger Williams faid he would not do it for nothing, orf 

which Blencoe agreed to advance 1000/. the 24th of June 17329 fli 

receipt was given under the hand of Roger Williams to PattiwgA 

hal an attorney in the following words : Received of my 

Richard Blencoe, the fum of 600 L by the hands of Mr. Pottingh 

in cotjji 'deration of the Jettlement to be made upon my wife. Thefel 

tlement was executed in Augujl after : Richard Blencoe died 1" 

Oclober following, and therefore die remaining 400 /. was nc 

paid. 

There being no receipt indorfed, is fo far from being a 1 
cumftance of fraud, that it (hews the fairnefs, becaufe, as \ 
whole icoo/. was not paid, they could not properly indorfeit»>{ 

In anfwer to the objection of the 99 years term having 
declaration of truft, it muft be confidered as if the hufband 1 
contending. All the ufes flicw it to be a marriage agreement! 
the limitation indeed is to truftees generally, but is declared I 
be for fuch a truft as is thcieinafter expreflcd. 

The term is to ftand no further than it iliall be thereafter 1 
clarcd, and the very nature of the agreement fhews, that it \ 
refult for the benefit of the hufband, and it is demonstration 1 
a court of equity, that it could never be intended that the \ 
of this term ihould be for his benefit, becaufe it would 
the limitation to the fons of no value : there is no doubt 
tut the parties meant it as a provifion for younger chikta 



OSanftcupt 189 

d the want of the formal deed, a leafe for a year, not Baow* *. 
iterial. J gNE «- . 

Mr. Attorney General's reply ; the faft proved is, that this 
m of 600/. was in consideration of a fettlement to be made. 

is pretty extraordinary that this fum fhould be paid three 
tonths before the fettlement executed. 

To make this a confideration, it is incumbent upon them 
> (hew it was the money of the brother, but it is exprefled to 
sin confideration of 1000/. in hand paid for the marriage 
onion, but not faid to be paid by the brother Mr. Blencoe\ 
cither has he figned the deed $ now if he was a party con- 
afting on his own account, could it be thought he would not 
are figned the deed ? 

It does not appear that this was a portion which could not 
c received without coming into a court of equity ; therefore 
: is hard to fay, that this is fuch a confideration, that the 
reditors of the hufband (hall not have a fale of the eftate with- 
at eftablifhing the provifion for the wife : this is not a fet- 
bnent to be carried into execution, therefore the court mud 
ike it on the very terms on which it (lands. 

Lord Chancellor \ This cafe is made out to my fatisfa£Uon. [ 190 ] 
tho' the court will favour creditors as much as they can, it 
Baft be where they have a fuperior right to other perfons. 

The queftions in the caufe are, 

tfi 9 Whether the deed is to be confidered as a valid fettlement ? 

idly, If it be, Whether the creditors can claim any benefit 
toder the fettlement ? 

Now as to the firft : It depends upon the confideration, for it 
taft be agreed 5 if the bankrupt has made a fettlement without 
^deration, it is not good. This is a queftion of fa&, and is 
ifidently proved to fatisfy me. 

It is admitted, if a fettlement is made before marriage, a fettlement af- 
•tagh without a portion, it would be good, for marriage it- ter marriage 
if is a confideration (1), and it is equally good if made after l^yml^^*' 
ferriage, provided it be upon payment of money as a portion, money as a por- 
fancw additional fum of money, or even an agreement to ti ?"». ora 1 , l cw 

. . <• i 1 r 1 • j r i additional fum. 

if money, if the money be afterwards paid puriuant to the or evcn an 

peement ; this is allowed both in law and equity, to be fuf- agreement to pay 

teitto make it a good and Valuable fettlement (2). ™7*jj/ fwr " 

The receipt Roger Williams gave for the 600/. makes it very 

» it was the money of Blencoe the wife's brother, for the 

oris are in confideration of my making her a jointure y or marriage 

tkmentm 

h has been obje&ed, that this is a recital only, under the 

aid of a bankrupt, and therefore fufpicious ; but to take off 

t fufpicion, the fon of Pottinghal fwears, he faw this receipt 

(i) See Ex parti Marjh, ante 1 5*. Matjb, C a. temp. Talb. 63. Ward*. &W- 
*T *. Athol^foft. Z -vol. 445. let, 2 Fef. 16. Hjltanv. Bi/eoe, 2 VeJ\ 308. 

\g) Such fettlement good not only Wheeler v. Caryl, Amh. 121. Lawy v. 
wA erediion, but againft purcha/ers. Atbal, pofi. 2 vol. 444. 446. 
ttiHr*. Paricr, Cro.Jac. 158. Jones v. 

in 



i 9 o OBanltrupt. 

Browic v. in his father's hands in 173*2, fix years before Roger W 
J ON,s - bankruptcy. 

Attother objection is, that the 600/. being paid before 
tlement made, therefore it cannot be deemed as the c 
ation of the fettlement. 

A confideration executed, is as good to fupport a fett 
as it is at law to fupport an a£Umpfit y to pay mone 
future time. 

It is further objected, that it docs not appear on the 
the receipt, that it was the brother's money, but mighi 
wife's, and confequently a chofe in a£Uon of the wife's 
the hufband might have recovered in pofleffion. 

Suppoflng it had been fo, if it had been in the hand: 
brother, and the filler had been married indifcreetly, 
brother holds his hand till the hufband makes a provifion 
honeftly done, and is no more than what the court woi 
done, and will equally fupport it, as if a bill had been 
againft the hufband to make a provifion for his wife ( 1 ). 

The creditors ftand only in the place of the hufband, 
ilatute of the 1 Jar. 1. cap. 15. was made to put credltoi 
• a commiffion of bankruptcy in the fame condition with < 
under the flatutes of the 13 and 27 Eliz. 

It has alfo been objected, that this is a defective fc 

Where creditor at * aW ^ 0r Want °^ l ' ie ^ ea ^ e ' 0r a vear ( 2 )' 

.oanhaTenore- * But notwithftanding the court wrll ai<J creditors ag; 
medyariaw,but feftive or fraudulent conveyances, and without confic 
eqdty,^s court an( * voluntary fettlements, yet if they have no remedy 
will mxke them but mu ft come into equity, this court will make t 
*> equity. equity* which brings it to the cafe of Taylor v. 

[ *l<)I ] %Vern. 564*. 
Though in a The fame equity will arife in the cafe of a convey: 

conveyance by leafe and releafe, the leafe being loft, does not at all 
•tbfi^afcTi 1 ^! tne fu.bftance of the cafe, and a. confideration being pre 
ling, yet if a though the leafe is miffing, yet the releafe will amoi 

confideration be 

proved, the releafe will amount to a covenant to ftand foiled. 

• A. mortgages copyhold land to B. but the furrender not being prefe 
the time limited by tne cuftom, became void. Afterwards A. becomes 
On a bill by B. againft the aiBgnccs, this dcftftlve furrender was made go) 

( 1 ) So Moor v. RycauU, Prcc. Cha. 22. editor's tfay on lifts and Trufts, 
"Middlecome v. Marlow, poft. 2 vol. 5 1 9. See alfo Loyd v. Spillcty pofi. 2 - 
Wheeler v. Catyl, Amb. 121. Ward v. Here we mu(l obferve, that if 
Sballetj 2 Vef. 17. Lake v. Bcrrisford* % pays a valuable confideration for 
Bro. Cha. Rep. 366. and by forne defc& or omiflio 

(2) fide Negus v.Reynal,i Keb, 12. Ford conveyance of the purchafed 
v. Grey, Mod. C». 44. 1 Salt. 286. S. C. him the /^/7/ellate is not pr©p< 

(3) i. e.a confideration of Marriage or veyed, in this cafe tho' the com 
bkody for a pecuniary confideration will could not create an life by way 
not raife an ufe by way of covenant to nant to ftand feifed, yet; the vetu 
ftand feifed. For the reafons of this be confidcred a trufiee for the j> 
dillinction, the reader is referred to the See Pollcxfcu v. Moor, foft. 3 « 



bankrupt. 191 

to ftand feifed: The fettlement -therefore mull Biowk *. 

Jon ei. 

cond queftion is, If it be a valid fettlement, whether 
ors can claim any benefit under the fettlement. 
flignee can claim no more benefit than Roger Williams 
which is the profits of this real eftate, for the life of the 

ily queftion then 13 on the term of 99 years. 

:he limitation to the wife for her jointure, then the fet- 

roes on and limits it to the ufe of truftees, their cxecu- 

for the term of 99 years for fuch ufes as herein and 

ex pre fled. 

been objefted by the plaintiff's counfel, as here is no intfct cafeof 
\n of the trufts of the term, that it is arefulting truft voluntary fettie- 
jfband, and as undifpofed of, in law and equity, refults JSS^ ^Jfe 
nor in the fettlement. claration of the 

truft or a term, 
the donor ; otherwife where it is a fettlement for a valuable confideratlon, and in the na- 
mtra& for the benefit of a wife, andoftheiuue. 

been determined fo, in the cafe of voluntary fettlements A limitation l« 
s : but then the queftion will turn upon this, Whether hjbauafo^ufe 
1 fettlement for valuable confideration, and in' the nature to truftees to 
ra£l for the benefit of the- wife for her jointure, and a v £*™ t \®{{£ 
for the benefit of the iflue, which in this cafe it certain- for her jointure, 
therefore, as to this, the affignee can be in no better and after the de- 
1 thun the bankrupt himfelf. ^ £*£ ££ «• 

:ourt always takes agreements of this kind according to years, on&ch 
re of the agreement itfelf ; the limitation to the fons af- trufts as hereaf- 
erm would not be worth half a crown, if the plaintiff's ^^the* 
1 fhould prevail, which would overturn and defeat the determination of 
:his fettlement, and therefore if the hufband had been ^Z^fJ* 
tiffin the caufe, the court would have confidered it as a everyother foa 
n only to attend the inheritance according to the limita- in tail. No 
this fettlement. SrfSrf* 

the term. The 
r% take* agreements of this kind according to the nature of the agreement, and therefore 
only as a truft term to attend the inheritance according to the limitations in this fettle- 



; cafe of Uvedalew. Halfpenny, before Sir Jofeph Jehyll [ 192 ] 
151. the truftees to preferve the contingent remainders 'were 
ter a limitation of an efate tail to thejbn, and yet he de- 
e fettlement to be rectified without any evidence of the 
' intention of parties as to the placing of the limita- 

)• 

prefent is a thing of the fame kind, in the reafoning of 

eg the words themfelves will warrant that conftru&ion : 

jJCenfiJb v. Nnvman, 1 P. W. ley v. Earl of Granville % ibid. 333. See 
rps r. Puget, 2 Vef. 19^.. Worf Ridout v. Dowding, poll. 419. 

On 



£T, 



191 Tsanfctupt. 

Bbowk v. On the whole, the plaintiff is intitlcd only to the intcrcft 
J 0Nrs ' hulband has in the eitate, which is but for his life ; and decn 
accordingly. 

Walker .mi. Others v. Burrows* 

November the 

19 I745 " Vide under the Divifion^ Ride as to Aflignees* 

5t ,he3,ft * Gre, v. Kentijb. 

Vide title "Baron and Feme, under the Divifion, Rule at to a Poff, 
lity of the mfe. 

Jaimary tit 

£^__ iCcche\B.Lz\vi "*TT^HE petitioner in 1751 married Coyfegame, who is no\* 
? A more fuliyftatcd. ■*■ bankrupt, and at the time of his laft examination, he d 
**;' A b .°nd g»vcn to livcred up with the reft of his citate a bond which was given 
cwTtE 1 ** fe " ^' m trul * t0 * ecure tne payment of an annuity of 40/. a year 
■lent of an an- the petitioner, during the joint lives of Sir Edward Smith ai 
nuityot'40/. the petitioner. 

UveTof Sir° mt ®k e brought a portion of 500/. to the bankrupt in marriag 
Edward Smith, and has nothing to fubfift upon but this annuity, and prays by hi 
theb^k ° nC ' P ct * t ' on » taat tne affignees may deliver the bond to her trufte 
wife ^hcdeJi- ana * that the arrears of her annuity, and all future payments ms 
ve« up the bond be made to her. 

upon his lift ex- 
amination ; fhc applies to the court, and prays the aflignees may deliver the bond ^to her truftee, ai 
tin: the arrcanof the annuity and all future payments may be made to her. 

trdvrc*\ nCeffcr ** r * ChwHor ordered accordingly, confidering the credita 

cordinjiy. " as Handing in the place of the huCband, and not intitled any moi 

than he would have been, in cafe he was no bankrupt, to the ai 

nuity, without making a provifion for her. 

L 193 ] For the aflignees under the commiflion it was infifted, ths 

WhercabmJis notwithftanding the huCband and wife mult have brought th 

8 lv "*o-»truit.«e a &i on \ n the name of the truftec of the bond for the annuiq 

for the beneir. ot .. , ... , r ., *,*,,• .■ 

a wife, a -di.uf- y ct > according to the opinion in Aides v. Williams et m 
bindUcome* i Will. 255. where a bond was made to A. in truft for J 
■ifigKM P cm*ot w ' 10 * >ecomes a bankrupt, the affignees may bring the action fl 
briny an ;i£rio^, their own name, thought, mult have brought it in the nan* 
f ff by . 1 J ac ' r * °^ n »s trultee ; and this Chews that in point of law they arc CO* 
i> 'halV th- "ike fid cre d a s having the abfolutc property for the benefit of the ctt 

remedy to rcco- ditors. 

vera debt, as the 

bankrupt hin.fclf might have had, the word party in the aft being meant of the bankrupt. 

The dittr j3 ut £ cr j Chancellor faid, he did not remember there was «0 

opinion in Rn.Ui 1 /• r 1 r?« 1 /•* i. i_i' 

v. milium a»d precedent for iuch an action by aiiignecs, where a bond wt 
his wife, 1 nyu given to a truftee for the wife's benefit, and not to herfclf : aa 
L S ?du./ti;/Z as ^" 8 °P m » on m l Will, was not- upon the principal point | 
to be Uv. the cafe, but obiter only, his Lordfhip denied it to be law, at 

thought clearly by the manner of wording the claufe* rclatiflgJ 



mmiffioner* power of alignment of a bankrupt's efFc&s, B*p*rt* 
1. that aflignces can only have the like remedy to recover oy%XGA * E » 
as the bankrupt himfelf might have had ; the words, as the 
nifclf might have had, in the conclufion of that claufe, ap- 
l to him to be meant of the bankrupt. And therefore or- 
lie bond to be delivered by the allignees to the petitioner, 
1 arrears and future payments of the annuity to be paid to " 
r herfeparate ufe (1). 

Vide Bofville v. Branded I P.* 1 Cox's P.Wms. 459. Jew/on v. Mwlfon, 
^58. Grey v . Kentijh , poft. *8o. poll. 2 vol.417'. Prytr V. Hill, 4 Bro. 
v. Marlar, and Bujhnam v. Pclh, Cha. Rep. 139. 

(Z) IVhat is y or is not, an AB of Bankruptcy. 7im*ixth,x743. 

Matter of IVdViam GuIJlon a Bankrupt ; upon the Peti- 
of William Gulfton % and a crofs Petition of George Dale 
Others, 

R. GuIJlon refiding in the ifland of BarbadoeSj on the 20th Cafe 10 r. 
of May laft preferred his petition to L$rd Chancellor , S. C.antt 139. 
f dating, that he being a merchant in London traded to Wk*« there u 
W/, and other places, and having fome years ago a con- bankruptcy, and 
le real eftate devifed to him in the ifland of Barbadoes, did, the bankruptU 
ter he had taken pofl&Eon thereof, put the fame under ??* °f xht . 

. r r ^. c \Z" ^ • kingdom, the 

inageraent of an agent there, for his greater convenience court win not 
•rting to this kingdom, and carrying on his trade and bufi- fuperfede the 
:re : that in 1737 he refided in this kingdom, and nego- ^ c ^^°^ poft 
lis bufimefs in a publick manner as a merchant, and never fend it to crUl t 
tted any aft of bankruptcy ; but finding that he was much but where the 
d upon in the management of his eftate at * Barbadoes>*hc r , me™the^ourt 
re, in order to make the mod thereof, determined to re- win fend it back 
hither with his family fometime about the latter end of * othc «°a«tf- 
tr I737> and his intention and determination of fo doing gder, if onevi- 
rll known to all pcrfons with whom the petitioner had any dence they can. 
5, and was concealed from none of them, and particularly blakro^iot. 
ell known to George Dale, who had fcveral dealings with 
titioner, and was with him almoft eyery day, and fome- C #1 94 J 
>ftener, for fix weeks, or two months before the time of 
dtioner's fo going abroad, and who had feveral goods 
up at the houfe of the petitioner, to be fent abroad with 
hat the petitioner did, in March 1737, go over with his 
to the ifland ctf Barbadoes, and had ever fince refided there 
better management and improvement of his eftate : that 
remitted to George Dale divers confiderablc fums of money 
mount of between three and four hundred pounds ; and, 
iftanding thii, Dale on the 2 1 ft of February laft procured 
lifioii of bankruptcy to be fealed againft GuIJlon \ but ie- 
ifnefies having been examined before the corr.miflioners, 
WC of opinion, that they ought not to declare him a bankv 



194 "Banlrupt 

Guiiiov*. yupt, and therefore the prefent application is, that tlie cbiiuhi 
* (ion may be fuperfeded. 

The evidence to prove him a bankrupt before the commifioi 
ers was a porter, who fwore, that, at the time Gulfton wei 
abroad, he ordered him to deny him to two different creditor 
Shipjion and another, and was conveying off his effe&s on fhij 
board : Shlpfton f being alfo examined before them, fwore that 
the time of Gulfton 1 s going to Barbados: he was Very well apprifc 
of his intention to leave the kingdom ; that he faw him fever 
times, and that Gulfton never refufed to fee him when he afb 
for him. 

It appeared by affidavits, that Dale was with Gulflon a gre 
many times before he went abroad, and was privy to it. 

Mr. Chute j who was counfel for Gulfton, fubmitted it to tl 
court, that, if Dale had thought him a bankrupt at that time, 1 
would certainly have applied for a commifiion then *, but inftes 
of doing that, he has fincc received four or five hundred poun< 
in difcharge of his debt, and without any fcruple applied it f< 
that purpofe, and now after five years acquiefcence is attemptu 
to make Gulfton a bankrupt. 

Mr. Chute infilled therefore, upon all thefe circum (lances, th 
the commiffion (hould be fuperfeded, or at lead that an iifi 
fliould be dire&ed to try the bankruptcy. 

He relied on a cafe mentioned in Wrctich*% cafe, Cro. Eh 

13. " There a procefs iflued againft J. S. to arreft him, wl 

u kept his houfe to fave himfelf from arreft, but afterwards we 

41 to the market, and to other places, and when lie heard aga 

" of a new procefs out againft him, he kept his houfe a feea 

. " time, but afterwards went at large : the queftion was, if '. 

u was within the ftatutes of bankruptcy 5 and all the court 1m 

u he was not, becaufe he ufed to go at large, and it might 

» I0 - 1 f< that his policy would not prevent the ferving of the procc 

L <« for he might be met withal unwittingly." 

Mr. Hume Campbell of the fame fide cited Hopiins v. Ell 
Salk. no. C€ Where it was held by Holt Chief Jufticc, that 
" H» commits a plain a& of bankruptcy, as keeping houfe, S 
u though he after goes abroad, and is a great dealer, yet that* 
" not purge the fir ft a£t of bankruptcy, but he will ft ill rem 
*' a bankrupt." But if the a& was not plain but doubtful, thl 
going abroad and dealing, &c. will be an evidence to explain "d 
intent of the firft a& ; for if it was not done to defraud crediw 
and keep out of the way, it will not be an a& of bankrupt 
within die ftatute (1). Alfo/if after a plain a& of bankrupt 
he pays off or compounds with all his creditors, he is become 
new man. 

Mr. Attorney General for the crofs petition ; , 

Mr. Dale's debt was originally 6000 /. and amounts now 
5500/. Some time in the year 1737 Gulfton ordered himfelf 
be denied to his creditors, and not only that, but left the HI 
dom and went abroad* '< 

• • 

(1) W*4in>t Cafe. Ball. Ni. Pri. 39. RsHny. Pertau, 1 Cooke'* B..&||gj 

1 



ttftttfcettpt.' *9s 



w. 



%t creditors, imagining that fomething beneficial might Ovijton 
torn out, have waited ali this time, in hopes Mr, Gulfton might ALI% 

be enabled to pay them ; but concluding now that by (laying they 
may make bad worfc, have agreed to take out a commiffion of 
bankruptcy. 

There are two forts of bankruptcy defcribed under the ftatute 
of the 13th of Eliz. ch. 7. and the id of Jac. ch. i$ A begin- 
ning to keep his houfe, or a departing from his dwellittg-houfe, 
it tie intent or purpofe to defraud or hinder any of his creditors 
fthejujl debt or duty of fuch creditor or creditors, or whereby his 
creditors may be defeated or delayed for the recovery of their juji and 
true debts. 

Lord Chancel/or: In confideration of Mr. Gulfton 9 ^ being 
oat of the kingdom, I think it very proper to direct an ifiue to 
try if he was a bankrupt before the taking out of the commit 

: Con. If he had been in England, I (hould have been of opinion 
to refer it back to the commiffioners, to confider upon the 

: evidence before them, whether they would declare him a 

t bankrupt. 

[ His Lordihip ordered, that the petitioners do forthwith pro- 
ceed to a trial at law in the court of King's Bench in London, on 
At following ifiue : Whether at and before the ifluing of the 
CDmmiflion of bankruptcy againft William Gulfton, he wis a 
bankrupt within the true intent and meaning of the feveral {ta- 
bles made and now in force concerning bankrupts ? And order- 
ed that Mr. Gulfton (hould be at liberty from time to time to in- 
■$e£k the commifiioners' proceedings, and to take copies or ex- 
tracts thereof as he (hall think proper ; and after the trial (hall 

[le had, any of the parties are to be at liberty to apply to his 

Lordihip for further directions* 

March the 28th, 1747. Laft Seal after H. T. f l * 6 J 

Lingpod v. Eade. 

A Motion was this day made on behalf of Lingpod for a new Cafe io2» 
•t\. ttizL on a fucccftion that the bankruptcy was found in- Jr *^ flrw f'!! 1 " 
Htvtiy upon the evidence of Vaughan, an attorney, who gave a ptrt f s. C, 
fc^ohe contrary teftimony from what he had done on a former 
fctlial in the court of Common Pleas. 

[ Lord Chancellor : Lord Chief Juftice Lee has informed me that 
idle evidence of Lingood's bankruptcy was very ftrong, and did 
Hm* depend on Mr. Vaughan only, and that the jury found him a 
bankrupt without going from thq bar ; and as I am thoroughly 
Satisfied with the account the Chief Juftice has given me, I (hall 
tideor the motion. 

c Upon a former trial before Lord Chief Juftice Willes, where AMcondinf t* 
B)ke bankruptcy of Lingpod came in queftion, he was of opinion J^^JJj^a* 
aperfon's abfconding to avoid an attachment upon an award award for n<m« 

delivery of good* 
ti d» trad, it not as %St of bankruptcy within the ftat. of Jac. i. t. 15. b«t it muft bo 
kg tnm the dwelling houfe to avoid the payment of a juft debt, and not the deliver* * 

O 2 l<* 



196 OBanktupt. 

Us*™* v . f or non-delivery of goods purfuant to the award, is not ; 



£ade 



bankruptcy) becaufc it is not within the words of the 1 
Jac. 1. ch. 15. which makes it an act of bankruptcy in 
to keep out of the way, or depart from his dwelling-hoi 
der to avoid the payment of *juji and true debt only % and 
delivery of goods, for that is a duty only: And Lord C 
declared that he thought the determination of Lord Chit 
WilUs a very right one, and that he was very well warr 
the words of the ftatute in the dittinftion he made betv 
fconding to avoid a debt, and abiconding to avoid a dut] 



t>«embtr** Ex parte Meymot. 

M^, 1747- 

Cafe 103, *TH H E petitioner applies to fuperfede a commiffion 1 
.^ I ruptcy taken out acainft him, infiflincr that, as 

of bankruptcy clergyman, and is now, and hath been ever fince 172c 
taken out againft of the parifli church of Normaiiton in Derbs/biir, he is 1 
^o^fifteddijit. to become bankrupt within the intent and meaning of ai 
a* he » a clergy- ftatutes made concerning bankrupts, 
man, he is not Mr. Brown for the petitioner cited the 21 Hen, 8. r. 
i^lp: b witWn " Whereby 'tis enafled that no fpiritual perfon, fccula 
the intent of any " gular, of what eftate or degree foever, mall from he 
of the bankrupt a j>y himfelf, jior by any other for him, nor to his ufe, 
Chancellor would and buy, to fell again for any lucre, gain or profit 
not fuperfede the « markets or fairs, and other places, any manner of catt 

S^a «°ifluc° r " lcad » tin » hides > tallow > flih > wool > wood >' or an y rc 
but left the pc- " viQual or merchandize, what kind foever die y be 
titioncr to hi* « p a i n to forfeit treble the value of every thing by thci 
*jfc*^f " an y t0 their Xl te* bargained and bought to fell again, 
\ ** y .^ *2./6." t0 { ^ IS a ^> and l ' lat cvcr y ^ ucn bargain al, d contract 



- j&?/Jfc " to ^ c madc by them, or by any to their ufe, central 
"*^^ F iq7 1 " aft, fliall be utterly void and of none effect, and the 
y V^ "of every fuch forfeiture to be to the King, and the o 
' ^ .**^^j*, w to him that will fue for the fame." 
'•4?££^jr ' And argued, that as this zSt pailed before any 1 

;x^^. w^^ bankrupt, and is ftill in force, no lubfcqucnt a£l could 
4/ J&**; /$2 tcn <l to iiiclude a fpiritual perfon under the general wor 
%e Zv / bankrupt a£U ; and as by thefe ads he is to be examir 
<£<**4£ c/^^*^^ oath with regard to the difcovcry of his eilate, it wou! 
f .s0/. *2> /£ the petitioner to accufe himfelf, and lay him open to the 
of the ftatute of Hen. 8. 

Mr. Wilbraham of the fame fide faid, The clergy ha 
privileges, fomc belonging to their peribns, and fomc 
ccclefiaftLcai benefices ; therefore though in many caf 
perfous hold lands and tenements, by reafon whereof 
liable to be elected to oilices, as a reeve, bailiff, 4sfr, 
clergy are discharged from fuch fervices by reafon of tin 
lion, and there is a writ in the Regijler which lies for I 
-charge, Reg. 1 87. b. recites quod clerui infra facros ordims 
ncn eiigantur ad ofju'mm. And Lord Coke, % Inft. 2 £jf 
Magna C&arta, fpeaking of the priv/leges of the clergy 



osanltrupt. 197 

!iat they are not to be chofen into any temporal office ; B * f ang 

I Vtntr. 105. there is the following cafe: One Dr. Lee, MlYM0T « 
ands within the level, was made an expenditor by the 

ioners of fewers in the county of Kent, whereupon he 
lis writ of privilege to the court of King's Bench, and it 
nted ; for, fays the Regijler^ Vir mllitans Deo tioti impli- 
negotiis fecularibusy and the ancient law is, qu?dclevici non 

in officii*. 
was the rule as eftablifhed by the common law; but it 

faid the ftatutes of bankrupts are general, and therefore 
rj ought not to be exempted , but then the 2 1 of Hen. 8. 

> this order of men from exerciiing any fort of trade or 
idize, by buying and felling again, with a view to prevent 
m being diverted from the proper bufmefs of their func- 
d their contra&s are ipfo facto void with a fevere penalty. 
: laws that have the fan&ion of a penalty annexed to 
:e more regarded than a&s of parliament, which are 
>rohibitory, without any penalty. 

r be intended, when by a former aft the legiflature had 
:d the clergy from exercifing any trades, that they meant 
le them under the general words per/on and perfotis in the 

> afts ? There is not a word in ihefc a£ts that fcems to 
: the clergy. 

*al words in an a£l of parliament may be reftrained, 
e reafon of the law feems to require it. In the cafe of 
Bakcr y 1 Roll, Rep. 202. it is laid down as a rule in the 
kion of ftatutes, that a general law does not make that 
hich was difabled by a particular ftatute before 5 and in 
S. the cafe of Sheffield v. Ratcliffe> he fays, Judges have 

in the conftrudtion of ftatutes to mould them to the 
d beft ufe according to reafon and convenience. Adls, 
in words, have been conftrucd to be but particular, 
he intent was particular. Ploivd. 204. Stradling v. 
\ for though the ftatute of if. 7. of fines be conceived [ 198 7 
al terms, and will bind corporations in general, yet by 
Hon of law the fucceflbr of a parfon, vicar, or any other 
toration, (hall have five years to make his claim ; for if 
laches they ihould bind their fucccflbrs, it would caufe 
ition of ecclefiaftical livings ; and therefore by conitruo 
the general law they are excepted. 1 1 Co. Magdalen 
1a/e 9 7 2 . a. 
be bankrupt afts be faid to intend the clergy f when they 

perfons ufing the moil fecular employments which arc 
rf to the clergy, and to mean thofe very perfons which 
not defcribe, but who by the ftatute of Hen. 8. are for* 

II under that defcription ? 

thad been the conftruciion, there muft have been fome 
l j and where the penning of an adl is dubious, long 
a juft medium to expound it by, for jus et norma loqtien- 
tmed by ufage. 

ihould be adjudged a bankrupt, what muft 

\ the commiiEoners examine him touching an a£k 

O3 of 



■9* 'Bankrupt 

Z* &*• of bankruptcy ? This is not to be done, without examining Ji*~ 
tmot. to fa B buying and felling; this fubje&s him to a forfeiture, and 
the bankrupt afts could never intend the power of conujfiiflionera 
to examine, fhould be fo extenfive, as to enable comthiffionerfl 
to examine perfons, who, if they difcover, mud fubje& thcia— ' 
felves to a forfeiture. 

Could the commiflioners affign over his living ? No, for th*e 
aflignee mud either have the whole or none ; fo that there can 
be nothing left for the performance of divine fervice in this cafe, 
which is, of itfelf, an argument it was not the intention of tHc 
bankrupt a&s to include fpiritual perfons ; befides, he may de- 
feat fuch an affignment at any time, for he may refign, and is 
not obliged to keep a curate. 

And in another inftance of fequeftring a living, the law has 
provided that enough mud be left of the benefice for the cure, 
that the parifhioners may not be without a perfon to perform 
divine fervice j and therefore in cafes of debts, if the flieriff »• 
turns that a defendant is clericus beneficiatus nullum halfins Imam 
feodum, he can do no more, but then procefs muft go to the 
biihop to fequefter his living. And in fuch cafe, as 'tis faid in 
2 Mod* 256. Walwyn v. Aubery, the biihop may retain to fup* 
ply the cure, and pay only the refidue. 

Here there can be no fuch provifion, and therefore this be* ■" 
comes a queftion of conveniency. No general inconvenience 
can arife from fuperfeding the commiflion, as this is the firffc 
inftance fince the bankrupt a&s ; but there may be great incoo-* 
venience, if it fhould not be fuperfeded, becaufe the cures of 
fuch clergymen cannot be feized. • 

Mr. Attorney General, of counfel for the petitioning creditor A 
fupport of the commiflion, faid, the trading of the petitioner is ^ 
partnerfhip with a potter in Stafford/hire, and there is no difput^ 
either as to the trade or a& of bankruptcy ; for Mr. MtymothmMi 
not ventured to produce any affidavit to contradift thefe fa&s* 
r jgg l Lord Chancellor (lopped Mr. Attorney General, and declared!* 

if he could (hew him that the petitioner had committed a plai*** 
a& of bankruptcy, and had traded, he would not fuperfedc th^| 
commiflion, becaufe a man has the hardinefs in a court rfj] 
juftice to fay, I have been guilty of a breach of one law, vcA i 
1 therefore rcleafe me from the breach of another. 

The affidavits were then read which had been made to fqP*^ 
port the commiflion, and were very ftrong for that purpofe. 

Lord Chancellor: There has no queftion been made concetlKJ 
ing the debt of the petitioning creditor, nor does Mr. Mefm-\ 
contradift his trading, his having contracted this debt, or hisArf 
iconding ; and therefore the whole for my confideration is, ykb*'i 
ther a clerk in holy orders is liable to a commiflion of bankruptcy M 

It is not proper for me to determine this queftion abfoln 
becaufe it is i mere matter of law 5 but I am of opinion I oogl 
not to fuperfede the commiflion, or direft an iflue, but 
the petitioner to his a&iou at law. 

If I was obliged to give an opinion, I am rather inclined I 
think he may become a bankrupt. 



*Battfcrtipt 199 

The ftatute of the 21 H. S. is rather in the nature of a prohi- Mm pn* 
Ltion, and a prohibition will not exempt him from being a TI *** Y1I0T " 
ankrupt; for if a man, with his eyes open, will break the law, then Sis. 
tat does not make void, the contract. It is undoubtedly very mil not exempt 
uproper for a perfon to fay, I have broke the law, and there^ ^y r . IMn 
>re I am exempt from any remedy a creditor may have againft bankruptf for he 
ie ; and the petitioner cannot take advantage of the breach of cannot take ad- 
ne law, in order to avoid his bfeing fubjeS to another. b^TofonV 

This is different from ufurious cafes, becaufe then both the law, to excuft 
orrower and the lender are equally criminal, or the lender {*''»&»« d»« 
ather more criminal, as he takes the advantage of the borrower's ^ ^ 
ndigent circumftances j but it is not fo here, for the borrower 
mly a&s in breach of the law, and the lender may not know it 
it the time, or that he is a clergyman. 

I will compare it to the cafe of a perfon who has dealt mere- Sm ^ ri ^ th ^ t 
y in fmuggling and running of goods, though this is an offence, contrary to' an 
md contrary to an aft of parliament, yet ftill it will be a trading »& of pariia- 
tithin the meaning of the bankrupt a£b, and fuch trader is li- JJJ^i^wkhin* 
•He to a commiffion. the meaning of 

the bankrupt 
«$f , and fuch petfbn liable to a commiffion* 

Next as to the penalty In the ftatute of the 21 //. 8. 

I am inclined to be of opinion on this part of the ad, that the A bargain or 
amraft fliall be void, as to the parfon himfelf only ; for it **£££**" 
frould be a moft extraordinary conftrudfcion of the ftatute that contrary a/the 
he bargain fliall be void for his own benefit ; and it would be very * ,tut « ° f the a*. 
nifchievous to conftrue the a& in fuch a manner. (*****£&*- 

Hmy perfons in this kingdom deal as graziers in buying of felf o,?ly, and ho 
attic, lie. the feller docs not know a grazier to be a clergyman j ^ one ^A iabl A to 
tall the bargain then be void for the parfon's benefit ? the t^ 

Suppofc in the counties of Surry, Kent, &c. a parfpn buys a 
;Uantity of hops, can the vendor know that he buys to confume [ 200 J 
aly in his houfe, and not to make a profit by retailing them 
gain ? If fuch a contraft therefore was to be made void by the 
iatutcof //. 8. it would be a great hardfhip and inconvenience 
> vendors. I mention this to (hew the mifchiefs which would 
tfolt from fuch a conftru&ion, and confequcntly this part of 
he aft ought to be fo conftrued, as to make it a penalty on 
imfelf only. 

Next as to the obje£lion of going on with the commiffion, 
iH eiamining the petitioner in relation to his cftate and effe&s. 
In die cafe 1 put before of fmuggling, there is no examination {fj^^^. 

the commiflioners, but will fubjeft to penalties; and yet to % que^on/l* 
at is no rcafon why the commiflion Ihould not proceed, for if muft demur ta 
^bankrupt has an obje&ion to the queftion, he muft demur to t r ^ g in ^^f > " 
: interrogatories, and this court will judge of the queftion up- CO urt will judge 
a petition ; or if the bankrupt refufes to anfwer any queftion, of it upon a pc- 
I the commiflioners commit him, and the delinquent brings «fJ2ito anfwer 
habeas corpus, the queftion muft be fet forth, particularly in any queftion, 

and the commif* 
neanaauthim, and the delinquent brings an babc*$ corfvr, the queftion muft be fet forth, parti* 
dy in the mtavn to the bal*** corpus, that the judges may judge, whether it was lawful or noC 

O 4 return 



E*}*rti return to the habeas corpus, that the judges may judge whethe; 
P ,Y /° T /£ /Was a l*™^ queftion or not; and notwithftanding all this, 
^j^ £u&* '*'*'* commiflioners may undoubtedly examine as to his eftate j 
//Cfi+t/'ftef* ^ ^effe&s, what he has, where it lies, &c. 

— / % The fecond obje&ion is, That a clergyman's is a fpiritualp 

ferment, and that his living is not within any of the ftatutes ; 
latin g to bankrupts. 

This is indeed a more doubtful queftion. 
Scdefiaftical ^° ^ e fare there are, in the bankrupt a£U, no words that ! 

eftitesmay be late merely to ecclefiaftrcal e dates, and therefore it is faid, if t 
taken l., exec*- w hole living is feized, it may prevent fcrvinz the cure ; but I 

tioa, and upon . & u i i_ ; r i- to • 

a fequcftwtioa not know trjis would be the confequence. 

likcwife, and \fl % A fieri facias de boras iflues sgainft the parfon, and 1 

whic^Upurfued ^ rieri ^ returns nullum laicum feodum, then a fpecial fieri facias 

in executions and bonis ecclefiafiicis iflues to the bifhop, and he apportions a part 

fequeftradon, ferve the cure, and the remainder is taken under the execurioi 

TOna\omro7f- This rule has been conftantly followed, but I do not kn< 

lion of bank- any particular law for it; and yet the court follows the rule 

raptcy* law analogically, but though they permit a fequeilration to ifli 

yet the bifliop in that cafe allots a fufficient part of the livh 

for the fervicc of the cure. 

I do not fee (bub I give no opinion) why the fame meth 

may not be followed under the commiffion of bankruptcy, foi 

does not appear to me, that this would fuperfede the bifho 

authority. 

A parfon holds a living in right of the church, and it i8 1 

for his own benefit, but for the good of the church, he is p 

fented to it, and therefore may properly be faid to be in au 

droit y as he is feifed in right of the church, and in fome i 

fpe£ts may be compared to an executor who a£ls in autre dn 

tho* the parfon's is not quite fo ftrong a cafe. ^ #» 

A peer or a * A commiffion of bankruptcy formerly iiTucd againft ape 

hwfcrf conv an car * °* Suffolk, for trading in wines, and though there ir 

monsif they will be fome particular powers that commiflioners of bankrupt coi 

trade are liable not exercifc againft a peer, yet, notwithftanding this, he n 

or b\nkxuptcyT be liable to a commiffion of bankruptcy, if he will trade, a 

otherwife as to fo may a member of the houfe of commons, though, wl 

lnhn ^ he continues a member, there are fome particular powers 

[*2o* ] commiflioners that cannot be exercifed (i). 

Lord Cowper and Lord Macclesfield catried it fo far as to hi 

that infants were liable to a£ts of bankruptcy, but it has Ik 

fince determined otherwife (2). 

Upon the whole circumftances of the cafe, I am of opin'n 

the commiflioners (hould proceed in the commiflion; but fo 

not to prejudice any remedy the petitioner may have by, 

action at law (3}. 

(1) See Stat. 4 Geo. 3. c. 33. (3) SccHanhcy v. Jones, Cowp. 745. 

(2) Ex parte SjdtUtbam, ante 146. ' 

% 



/Kattferttpt. aoi 

hx parte Hall. ant, 1753, 

Cafe 104. 

THIS was a petition on behalf of the bankrupt, praying to A performs deny- 
fuperfede the commiflion. m in s himfcltto* 

It appeared upon the affidavit of his wife, that two pcrfons c ji, at c Tcvcn 
called one riight at her hufband's houfe after eleven o'clock, o'clock at night, 
that thcr were both in bed at that time, and ;<s he did not care j^^J' for 
to rife, (he went to the window and aiked who was there, and it cannot be CM 
upon thefc pcrfons refufmg to mention their names, flic faid to b« donc »^ 
u Whoever ye are, if you will come to-morrow, cr any other ^^^^^j^ 
"proper time, you may fpeak with my hufband." *$, which U 

The commillioncrs declared Hall a bankrupt on the evidence ^ in » r «^ n t 
ofthefe very pcrfons one of whom was a creditor. They only n^nent rcqmre" 
fwore generally* that they went upon the day mentioned in to nuke a nua * 
Mr*. Hall's depofition and that they faw her hufband go into blnk,1, P t# 
his houfe, and followed him direclly, and inquiring for him of 
his wife, fiie faid that her hufband was not at home, though 
they verily believed and apprehended that he was, and that he 
kept his houfe for fear of being arretted by his creditors. 

Lord Chancellor : There is no pretence to fay that Hall has 
committed an aft of bankruptcy, for eleven o'clock at night is a 
tcry improper hour for creditors to call, nor can a man's deny- 
ing himfelf at fuch an hour, be faid to be do.ie with an intent 
to defraud bis creditors ', which is the ingredient the a£ls of par- 
lament require to make a man a bankrupt. 

And as the flatute of the 5 Geo. 2. has declared, €t That if 
"itfhall appear a commiflion is taken out fraudulently or nu- 
" licioufly, that then the Lord Chancellor, &c. for the time being, 
M mall, and may, upon the petition of the party grieved, examine 
<c into the fame, and order fatisfadtion to be made to him, for the 
"damages by him fultained \ and for the better recovery thereof 
"may, in cafe there be occafion, aflign the bond (meaning the [ 20a 1 

* bond before mentioned, which the petitioning creditor gives to 

* fat Lord Chancellor, &c. before the granting of the commiflion, 

* in the penalty of 200/. conditioned for proving his debt, and 
"ahofor proving the party a bankrupt, and further proiccu- 
ft oon of the commiflion) to the party petitioning, who may fue 
"for the fame in his name; any law, cultom, or uiagc to the 

* contrary notwithstanding- " 

I (hall therefore order, that it (hall be referred to a Matter to Re frrred to « 
fettle the cofts, and to afcertain the damages Mr. Hall his iuftain- ^^£ l d ile 
^t and if the petitioning creditor does not within a fortnight after afcertain the 
&c Mailer's report of what is due for coirs, and likewiie for da- Bruges Mr. 
mages, pay the fame to Mr. //,//, I will, upon his appli- ^.^tl 
fation to me, direct the bond to be afligned to him, to be put ticon'm? creditor 
fofuitagainft the petitioning creditor, where at law, the jury <*°«notwiihiii 
may, if they think proper, give to the value of die whole penal- thrTimc/th/ 

ty in damages* bond to b<- af- 

filed to be put 
in fuit againtt 
N. B. hi -a. 



so* 15attfcrtipt 

£**** N. B. His Lordfliip faid, the circumftances of this cafe x* 

Hall* |. q flagYan^ t h at jf an y thing of the fame fort (hould c 

be attempted again, he would certainly commit the act 
ney who fued put the commiflion. 

( Aa) Rule as to Sales before Commijjioners. 

Agltht nth f g x prte Green. 

Cafe 105. \ Reverfionary eftate of the bankrupt's has been pat op 
Advcrtiiemenn l\ fale before the commiflioners, and, as ufual, it w 

bef^olX a S rccd h Y Ac P anic9 P rcfcnt > that * c biding fhould be chi 
fioncr»ofbaak- by a certain time though in the advertisement for the mectii 
rupti (hould not it was general, without naming any hour ; one Coward was d 
^hTto^e 4 clared thc beft bidder: and after the time allotted by tl 
the hour u maf- commiflioners for bidding was expired, a perfon of the name 
•2J^ ind . af " r Eldrtdge bid 10/. more; but the commiflioners and affigne 
ifcommfffwners were of opinion, Coward, according to the terms of the biddinj 
are not gone, was the purchafer, and would not admit Mr. Eldridge's to be 
£^^ ita - proper bidding. 

better bidder, in r „. r - - ? -. ...... , - . #r 

order to give ere- omce the fale at Guildhall , the reverfion is come into poifc 
f i ^feA- gre * t ^ on > an ^ now * n P * 11 * of value the eftate is worth 500/. ma 
their iofi°«^or- t ^ i2n it was at the time of the bidding. 

Ifcle. fjord Chancellor : I am of opinion, that commiflioners of ban! 

^ 4+cf^ ^ ruptcy fhould not be fo extremely nice, as to preclude a perfc 
► V^^Z^*-* - * rom being a purchafer, becaufe he happens to have outftayt 
*~?*j^L** .J&Jtf'^* t * me ^ ct by the commiflioners*, and think this like tl 
* /\ / // c ^fe 6f eftates fold before Matters for payment of creditor 

ta*****^* *y where they always advertife the fale to be at a definite time, J 
^ ^Jjj^^^^Jbetween the hours often and twelve, becaufe they may nott 
cO a&f^ty under the neceflity of flaying beyond that time ; but if a pcrfo 
I 2 °3 ] comes to bid, even after that time, before thc Mafter is gon< 
"V^^^Tie is admitted notwith (landing : and the advertifements in caf« 
~^\jS**A f a ^s before commiflioners of bankrupts fhould not be gencr 
y & £# for a meeting in order to fell a bankrupt's eftate, but fhorf 

a ~£% name the hour as Mafters do, and after the time expired, 

thc commiflioners are not gone, they ought to admit a better bi< 
der, in order to give creditors as great fatisfactton for their k 
as pofliblc; and as matters of bankruptcy are difcretionary in tl 
court, I fhall never tic up a bidding to fuch ftrift rules *, artf 
order the bidding to be opened again. 



■Banttupt. *>3 



(Bb) Rule as to Examinations taken before CommiJJioners* 

Bad* v. Thomas Lingood a Bankrupt, and Margaret Lingood his May &e *3*» 
Daughter, &c t ,747 ' 

THE plaintiff had obtained an order to read the proceed- Cafe iooV 
ings in the commiflion of bankruptcy, as an exhibit in his An order had 
caufe, and, amongft the reft, the examination of Margaret been obtained to 
Lmgood before the commiflioners. the ttimiaationt 

It was objected by the counfel, that Margaret Lingood*s of Margaret 
examination cannot be read where (he is a defendant, unlefs it ^ntS»Sm^ 
hi been proved over again in the caufe. mjffionen under 

Thomas Limgood'l 
hnkraptcy. They cannot be read, unleft prayed in the caufe, that there were fuch examinations 
taken before the commiflioners ; for the proceedings in a commiflion of bankruptcy againft Tbma* 
«, si to Margaret, res infer eJbn aBa. fa g d , **^£r*< 

Lord Chancellor : Two queftions have been made on the /? '*' j£ 
phintifPs offering to read the examination of Margaret Lingood* t +*-*.■* t*~*> • 

Firft qucftion : Suppofing the order had been fufficicnt, whe-£ &****+€* ^^ 
ther the plaintiff could have read her examination taken before 
Ac commiflioners ? 

^ Now I am extremely doubtful, if the plaintiff could have read 
it wen then. 

The rules m refpe& to vivi voce examinations are held ex- 
tremely drift in this court : as for inftance, in cafes of wills, 
this court never fuffers them to be proved by examinations of 
vitnefies viva voce, for it is not fufficient to prove a figning and 
fading, but the fanity of the perfon, and all other requifites un- 
der the ftatute, mult be proved, and this cannot be done by 
*W voce examinations ; becaufe the defendant has a right to a 
po& examination of the plaintiff's witneffes. 

I will put the cafe of an affidavit made to contradiffc an an* 
fwer j fuppofe there the plaintiff fhould produce a copy of the 
original affidavit from the office, I never knew it allowed as 
fefficient. 

The next queftion has arifen upon the order obtained by the [ 204 ] 
phtntifiF to read the proceedings under the commiflion of bank- 
f niptcy in the prefent caufe, faving juft exceptions. 

This order is obtained upon the fame foundation as an order ^ n 0R * er ^."^ 
to read in one caufe, the bill; anfwer, and the reft of the pro- ^ one^ufcfn 
feedings in another caufe, where it is between the fame parties 5 another, muft be 
but fuch an order cannot be extended to a third perfon, who 5 etwcen 5 hc 

w. « /- rx r fame parties. 

*as no party to the firft. 

Now Margaret Lingood is not at all bound by the proceedings 
*n a commiflion of bankruptcy againft Thomas Lingood) for as to 
w it is res inter alios afia. 
% Upon the whole, his Lord (hip would not admit this examina- 

I^On to be read, unlefs the plaintiff had proved in the caufe, that 
ttere were fuch examination? taken before the commiflioners. 
The 




'/" 



«o4 'Bankrupt 

Eadi *•. The bill here is brought againft Thomas Lingooi^ chargin 

LiKc^n.. f rauc i againft him, in pretending to have bought a copy* 

Where one eftate with his daughters' money, when it was in fadt v 

defendant is . . ° '* 

charged wih a HIS 0WI1. 

fra«d, h«» depo- j-j| s daughters are made defendants in the caufe, in ordei 
fe^foranoth^r, reconvey the copyhold to the aflignecs under the commifl 
a* it may tend again it Lingood, 

to excufc him ^fr. Solicitor General, counfel for the daughters, in exc 

kUowjfcofts? °^ tne ' r co ^ s onrerci ^ t0 rea d tnc defendant Thomrs Lingccd's 
pofition, to (hew that he led them into the miftake, by info: 
ing them that the purchafc was made with their money. 

Lord Chancellor refufed to let Thomas Lingood's depofition 
read, becaufe where one defendant is charged by the bill wit 
fraud, his dcpcfition cannot be read for another defendant, 2 
will be an advantage to himfelf, and may tend to excufe 1 
with regard to his own cods. 

JOecmhrthe Ex parte Parfons. 

Cafe 107. T ORD Chancellor upon a former petition had directed 

Ante 72. S. C. -*-* coimmfliou of bankruptcy that had been taken out aga 

Lord Cbtncelhr Mr. Pnrfom the fon of the petitioner ihoulcl proceed, and 

on atormcrap- C0mm ifl* iOners were allowed to go fo far as to make a provific 

plication hnu.ed p . I 

Mn. Torfin% amgnmcnr, but no warranto! icizureto lflue, nor any advert 
examination be- mC nt tobe publithcd for the bankrupt's appearing and furrendr 
&^^bT f ' Wmfdf till further order. 

fon's trading on. Upon the commiffioners proceeding in the com mi (Hon, : 
|y, but upon the examining Mrs. Parfons the petitioner and mother of the ba 
Son^rervSSd'to ru pt> an application was made to I*ord Chancellor before the 1 
reftrainihecom- vacation, on the part of Mrs. Parfons \ that the cxarr.inai 
miflioncw frcm fl ]d bc i; m i tCl i to for fon' s trading only, and Lord Cham 
inquiring into . i- 1 J 

any ciruirrt- did limit it accordingly. 

ftance^ which Xhe prefent petition is, that the commiffioners may be 

"IrLcT^ 6 hjm ^ ramec ^ * rom a^ing a particular queition mentioned in the { 

r jp- ] tion, concerning her fon' s trading. 
.j-^T^v/^V Lord Chancellor faid, lie did not intend by the former o: 
y ^/.gAt,^ reftrain the commiffioners from afking any queition that m 
p 'f bc relevant to his being a trader, or any circumftances rela 

thereto. 

She was afked by the commiffioners, whether her fon w 
trader or not, or had any concern in the brewheufe ? and 
fwcred negatively. He would not therefore reftrain the c 
miflioners from inquiring into any circumftances which ; 
make him a trader; as for inftance, " Did your fon aflign < 
" any mare he had in the brewing trade to you ? Tor if fhe 
fwers in the affirmative, that will (hew he was a trader be 
he executed an aflignment. 

Suppofe in the deeds themfelves it fhould appear he car 
on the trade with his mother, this will be a material evick 
for the fupport of the commilTion. 



'Banfctupt aoj 

His LonHhip would hot reftrain the commiflioners from exn- E*f*m 
mining Mr. Parfons concerning her fon's trade, and therefore Pa * so **- 
difrnifled the petition, and faid further that he would not make Lord Chancellor 
any order that Mrs. Parfom fliould be at liberty to be attended ^ord^ri*^ 
by counfel upon her examination, as is prayed by the petition, Mrs. Par/an 
bscaufe it may be made a precedent in other commifiions, and <hould ***** 
he thought an inconvenience would arife if allowed in every hcTexarnioailan 
cafe, and therefore only recommended it to the^commiifioners, becaufc it mi^hi 
in this particular inftance, to indulge Mrs. Parfons with counfel, hc mad ? a p 5 e " 
but would make no order for that purpofe. commiflwnt, 

and thought an 
inconvenience would arife, if allowed in every caic. 

Ex parte Bland. Cafe 108^ . 

TH E petitioner is a banker in Lombard- flreet, and had vLi^Stari/i^ 
been fummoned under the commiflion of bankrupt againft j*"^^^" 
L*»gtot, in order to be examined touching his trade and deal- l *f i * c ^fa\J£i 
ings with the bankrupt. that He might 

Mr. Bland, inflead of attending the commiflioncrs, petitioned Jj* " n ^' 
Lwd Chancellor that he might be examined upon interrogatories, torie8> a ndhar« 
and might have a copy of the interrogatories, and a month's time a copy thereof, 
to prepare himfclf for this examination, and that the commit- ^""p^^, 
fcners might be reftrained from alking him qucftions touching himfeJf, and 
*>tes given for money, or bank notes or goldfmith's notes, or that the com- 
^oney paid by him for bank bills, or cafli notes of the petitioner j^ ^"^doed* 
Mother bankers. from diking bun 

particular quff- 
tloni in his bufinef* of a banker 

Lord Chancellor difmiffed the petition upon the opening of Lo^ Chancellor 

rk~ . . • /- , -i i • i ir % r i will notrcltoia 

If, e petitioner 8 counfel, without hearing the aingnets counlel, CO mrai<iion<T* 
ai *d faid he would not limit or reitrain commillioncrrs in their in their e*imi- 
c ^«iination$, for if he did it would be attended with expence ^J^^L ^ 
^d inconvenience from applications of this kind. tended wirh 

expence and 
inconvenience from applications of this kind. 

The bare exchanging of nctes with a bankrupt, or. giving The bare ex- 

***oney for bank notes, cannot affeft him as a trader with that ^Jef with a 

***nkrupr, and confequently Mr. Bland cannot be hurt by luch bankrupt, or 

* difcovery, nor would he pre fume that the commiflioners will * m £* ™ ^ 

*fcfuch trifling and immaterial queftions, and therefore would cannot affect 

n ot dircd the examination to be upon interrogatories. nim « $ trader 

r e wUh that bank- 

rupt. 

(Cc) Who are liable to Bankruptcy.. 

Dectmber the 

Highnore v. Molloy. nth, X 1M* ^.^ r 

T°RD Chancellor; I am inclined to think a pawnbroker Cafe \og.^ 
, within the feveral ftattites concerning bankrupts, and efpe- ^hin^fta-^/-^ 
^Mj within the general words of the 39th claufc of the 5th ofm^,,^,^. ^^ 

^ _ rupt;, and fe?m 

/2jMf ia*4<4 'in tfat general word brtkm, in the 39th. feftion' «f the 5th of C». *. and lb in a. '/< 
^il ■%!!}, at m txafeman, *c. if he will trade* — 

Gw% 



*o6 bankrupt 

m 2?" L * Q l* m Ge0 - *• thc words of which arc, "Whereas perfons dealing 
" as b an k crSj brokers^ and faftors, ate frequently intruded with 
cc great fums of money, and with goods and efte&s of very great 
'* value belonging to other perfons : It is hereby further ena&ed 
c€ that fuch bankers, brokers, and factors (hall be, and hereby 
c< are declared to be fubjeft and liable to this, and other the fta*' 
€< tutes made concerning bankrupts." 

For though pawnbrokers are not exprefsly named, yet the ge- 
neral word brokers is the genus, and all other kind of brokerage 
the fpecies. 

His Lordfhip faid in the fame cafe, Though a man be a pub* 
lick officer, as an excifeman, &c. yet, if he will trade, he makes 
himfelf fubje£l to the ftatutcs of bankrupts* 

January iz<J, Ex parte Carrington. 

*739* 

Cafe 1 10. A C° mmi ffi° n of bankruptcy had been taken out againfl D* 
The daughter of jljL rot h Jones, as a widow. Her lying in gaol from the 8th^ 
a freeman of of November (on an arreft) to the 4th of January, being two ^ 
ttSeTie^ately mont ^ s > was t ^ lc a & of bankruptcy, on which (he was declared t 
from her huf- bankrupt. 

***** m *rb« * The petition was preferred in order to fuperfedc the commit 
tn ^ upt * fion, upon a fuggeftion of her being a married woman at tte 

time the commilfion iflaed, and the wife of the petitioner. 

Lord Chancellor : I am of opinion the taking out a commiffioilL 
again (I her as a widow, is but a mifnomer at mod ; but if the 
petitioner thinks this a fufiicient ground, I leave'him at liberty to 
bring his adion. 

As Dorothy is admitted to be the daughter of a freeman of 
London, and appears plainly to be a feparate trader, by the caC- 
torn of London, (he is clearly liable to bankruptcy, notwithftan<l- 
ing her coverture ( 1 ). 
The petition difmifled. 

(1) So Lavie v. Philips, 3 Burr. 1776. 1 Black. Rep. 570. S. C. I Co** . 
Dig. 521. 

jb&fttht 2d, Ex parte Crifp. 

*744* 

r 1 Vide under the Divifion, Rule as to Partner/hip* 

Dtemkr the Ex parte Meymet. 

*4*» J747» 

Vide under the Divifion, What is or is not an jlB of Bankruptcy ~ 



Ftbrway the Richard/on and Gibbons, Affignccs of Alexander 1 pu: nt jfll 
«4*h, 175*. Wilfon a Bankrupt. — — J 

Bradjbav;, Taylor, and Wilfon % ■■ Defendant 

Vide under the Divifion, What is a trading to mats a 

Bankrupt* 



*Hfelftt' *°7 

JSx parte Williarnfon. JJJ? ****** 

tier the D'tv'tfton, Rule as to the Certificate of a Bankrupt. 

(Dd) Rule as to a Bankrupt's Allowance. CffefcrtfaKafc 

Ex parte Grier. 

IE petitioner Ruth Grier > the widow and adrniniflratri* Cafe xii* 

of John Grier, againft whom a commiffion of bankruptcy A banket b 

:en awarded, prayed that die affignees of the eftate and ef- JJjJJ^tX 

>f the bankrupt might be ordered to pay unto the petitioner ^n he has had 

m of 35/. being the remainder of the 5/. per cent, unre- hi* certificate. 

, which the petitioner infifts John Gricr the bankrupt was 

d to as his allowance, in refpe& to the fum of 800 /. reco- 

in from his eftate, or that (he might have fuch other allow- 

is he was intitled unto at his death. 

*d Chancellor : I am of opinion on the conftru&ion of the L *°* J 

:s in the aft of parliament made in the fifth year of the 

it king, that though Gricr the bankrupt did furrender and ' 

>rm, yet that he was not intitled to the allowance given to 

rupts, imlefs he had had his certificate \ for if the creditors 

d confent to give it him before, it would be of. no fervice, 

cy might take it from him again the next moment ; for it 

d be liable in his hands to fatisiy any creditors, till he is eu- 

f cleared by the certificate. 

is Lordfhip therefore ordered the petition to be difmifled. 



Ex parte Trap. D**mt*rih* 

H*» "747- 
^HE petitioner is the representative of a bankrupt whofe Cafe 11 2* 
eftate had paid a neat 10/. in the pound to his creditors A bankrupt' 
cr the commiffion, and thereby became intitled to an al- jP^JJJ tt ^T 
ance of 5/. per cent, provided the 5 per cent, did not amount UamentU* 
he whole to above the fum of two hundred pounds. The vetted Interest 
imiflioners dire&ed the affignees to pay the bankrupt the "^J jL ^ h^ 
lof 163/. being within the fum, his eftate amounting to repreicatative. 
do/, but before the affignees had paid it, the bankrupt dies, 
dch was the reafon they did not think fit to pay it to the 
pefentative of the bankrupt, without the fan&ion of the 
*m. 
Uri Chancellor of opinion it vefted in the bankrupt, and 

* petitioner confequently at his reprefentative intitled to 

* 163/. (1). 

(i) Ex parte Cakot> poll. 209. poll. 3 vol. 814. S. C. 



f^ 7the 2d# Ex P arte SliIes and pickart - 

Cafe 1 1 3. / T* ^ E petitioners by their petition fet forth, that they h: 
Bankrupts arc -"• P au * a dividend of i ox. in the pound, clear of all expcnc< 
not intitlcd to under a joint commiflion ; and therefore pr?ycd they may ha 
their allowance the allowance they are intitlcd to under the adt of the fifth oft 

•Oder the 5th of nm r k , . ' 

the prefent P rcfo,t tmg- 

king, tin a final A fcparate creditor, who by order of the Lord Chanccil 
t^MMLbc' Was ai . lmittccl to P r -° ve her debt under the joint commiflion, c 
teen before, P°fcs it, and infills the bankrupts are not intitlcd, as their ftp 
^Ph"?** 3 * TatC c '^ tc * s *° deficient, as not to produce 2/, 6d. in ti 
to my allowance P ounc *> a »d that the bankrupts cannot receive the allowani 
•tajL under the acT: of parliament, till they have paid all their cr< 

c/r&UZ *™^*y ditors, as well fcparate as joint, twenty (hillings in ti 
fcvi&r *^ " ' pound. 

Lord Chancellor : This application is premature, the commi: 

fionhTucd no longer ago than in June lait, no final dividend ha 

been made, and before that time any creditor may come, eithc 

joint or feparate, to prove debts. 

C 209 ] And even upon the common equity of this court, if creditoi 

TXpon an affidavit will make an affidavit that they have not read the Gazette^ the 

Uhnmlat wiI1 bc aclmittC( *> fo as not to difturb the former dividend, an 

the Gaxitu, he by that means mud, in the firft place, be brought up equal I 

wiu be admitted the creditors under the former dividend, before the comnuffiai 

*£$££ ' crs can proceed to make a fecond. 

dividend, nor 

can commiffiouen proceed to make a fecond tilt he it brought up equal-to the creditor* undtr thtfir 

So that, till after a final dividend, it cannot be fecn whetb 
the bankrupts will bc intitled to any allowance at all, for tl 
»& of parliament dirc&s that the neat produce of his eftate flu 
be fufficient to pay the creditors of the bankrupt, who have pro 
cd their debts under the faid commiflion, the fuin of ten fliillui 
in the pound, over and above fttch allowance* 

Therefore to grant this petition would be a dangerous pi 

cedent , and for this reafon 1 difmifs it, but fo as not to pi 

judice any allowance they may be intitled to after a final 

vide ad. 
# 

y*~+&&ovmh<r$x% 2x parte Calcot, and Others, 

' ,id, 1754. 



^^ *Cafc 1 14. T* ^^ P ct i l i° ner 1S an adminiftrator of one Tirrell % a bai 
S. C. poft 3 vol. X rupt, his application to the court for the bankrupt's 
*'*• lowance under the act of parliament, he having made a n 

iiye C o7^bank^" dividend of jo/, in the pound. 

rupt, who had Lord CI?nncelhr ordered the aflignec out of the effe£U ill 
toW«l|fc-ti»« hands fhould pay the allowance to the petitioner, at the iat« 
thl pound ii,"ai $L per cent, upon the money got in from the bankrupt 1 * efts 

Handing in his not exceeding the fum of 200 /. (l). 

place, in:i tied to ° ■ V ' 

the allowance. ^ Ejc parte Trap% ante %Q%. * 



<Baftfcrttpt. &o* 

(Ec) Rule as to Solicitors in Bankrupt Cafes. 

Ex parte Holliday. y* w the 17th, 

1742. 

Petition againft Phelps the clerk, in a commiflion of bank- Cafe nr>' 
nipt for not attending a trial at the aflizes upon an indi&- The court can- 
igainft the bankrupt for concealment, notwithftanding he Jjj* "^JJaZ 
rved with ^fubpoena for that purpofe \ and praying that the clerk of the 
cofts of the fuit may be paid by Phelps, as the petitioner coxhmiflioii pty 
ends that the acquittal 0/ the bankrupt was owing to the ^ttei^to* 
if Phelps's evidence. gto cvideace * 

/ Chancellor : This is not a matter proper for me to deter- V^^thl"** 
11 a furamary way, or to interfere in a proceeding before a bankrupt ww 
>f oyer and terminer. acquitted, the 

£ petitioner has really fuftained anydamages in this trial fot^ j* roed y 1 J in «*t 
f Mr. Phelps's evidence, he may proceed againft him by 
iudi&ment or information, and recover damages for this T 210 ] 
: of Mr. Phelps ; and therefore as to this part I (hall dif- 
e petition, as I have no jurifdi&ion at all in a matter of 
id. 

Ex parte Whitchurch and Others. 7^the 7 tfc. 

S Lordfhip, by a former order in petitions of bankrupts, Cafe 1 i<J # 
referred it to a Matter to tax Mr. Skt/rray's bill as follici- Ante 91. 

fuits carried on in this court by the affignecs of Halliday's where ifoJkitoc 

ptcy. 'faStm** 

Matter taxed the bill accordingly, and reported fo much ,£it]£ut thee*. 

him on account of thefe fuits* thority of the 

e of the creditors of Halliday in behalf of themfelves and o^e^dhS" 

: of the creditors, take exceptions to this report, becaufe the eftate of the* 

gnees engaged in thefe fuits of their own accord, with* bankrupt it not 

previous meeting of the creditors to impower them to } * b Jjj£ J^Jj 11 

nee fuits in equity, purfuant to the directions in a claufe. 

; Geo* 2. intitled, An aEl to prevent the cc mm it sing of frauds 

ruptSm 

•ovided alwap, that no fuit in equity fhall be commenced 

ly aflignee or aflignees, without the confent of the major • 

in value of the creditors of fuch bankrupt, who (hall be 

mt at a meeting of the creditors, purfuant to notice to be 

1 in the London Gazette for that purpofe." 

\ ChnnctUor : The exception muft be allowed, and as he 

aptoyed by die aflignee, Mr. Skurray has a perfonal re- 

igainft him, but fince he a£ted without the authority of 

ijority in value of the creditors at a previous meeting 

at purpofe, the eftate of the bankrupt is not liable t* 

stand. 

-L P 



iio bankrupt 



(Ff ) Rule as to the Sale of Offices under a Caumjjfic* 

Bankruptcy* 

A*x*fi the 3d, Ex parte Butler and Purnell, the Aflignees of Edward RicbarJjfi 
*W* a Bankrupt. 

Cafe 1 1 7, 77 ^ ^^ ^ ^ Richard/on in 1 746, and for fome years befal 
followed the bufinefs of a victualler in the city of Lank 
Poft"*i$! " 73# and having acquired fome money, and borrowing more, in Sf 
The bankrupt, * 1 746, purchased the office of the under marfhal of the faiddl 
chafld th/office *° r 9°°'* two thirds of winch was paid to the then lord Maj«l 
of the under and the other third to the faid city. 

marihal of the 

city of London for 900/. afalary annexed to it of 60/. payable half yearly, and a freedom of tfeej 
city, worth annually 25/. Richard/on** efte&s not amounting to 55. in the pound, hit af&gneeiq| 
«d to the lord mayor and court of aldermen, fur liberty to fell the bankrupt's office ; but he beiaf 
Cent in court, and refuting toconfent, they declared that they could not alienate it without his cool 
The prefent application, that this office may be forthwith fold, and that the lord mayor, Qtc. md 
indemnified in accepting fuch alienation, on the aflignees paying the ufual alienation fine. Theu 
Cbunalloroi opinion, that aflignees might fell this office of unjer marflial, and that it it not «i 
the ftatute of Edw. 6. as it does not concern the adm imitation of juftice* 

[ # 2 1 1 ] To the office is annexed not only a yearly falary of 60/. payak 

half yearly out of the chamber of the city, but alfo a freedom 
the faid city every year, worth 25/. and confiderable perqui&i 
befides. 

On the 22d of April 1749, a commiffion of bankruptcy 
fued againfl him ; there is not fumcient to pay 5/. in ' 
pound from the efte&s in the hands of the affigneesa and thi 
fore they applied to the lord Mayor ;;nd court of aldermen, 
liberty for them to fell the bankrupt's office, but he being pjfl 
fent in that court, and afked if he would confent to fuch (ah 
abfolutely refufed to do it, whereupon the court of aldermd 
declared, that they could not alienate it without the bankrupt 
confent. \ 

The petitioners apprehending the intercfl: of the faid office 
veiled in them, and that as he might have fold on the ufual aEc 
nation fine, infill they, at (landing in his place, have a right • 
fell the fame for the benefit cf the creditors, without tfci 
bankrupt's confent, and therefore pray, that the office 
under marihal may be forthwith fold for the benefit of hU 
creditors, and that the lord Mayor and court of aldermen naf 
be indemnified in accepting of fuch alienation on the petitioners 
paying into the chamber of the city of London the ufual alio*' 
tion fine. 

At the time of Ricbardfon'% ad million, it is cxpreflcd in tW 
appointment, that he (hall have, hold, cxcrciic, and enjoy " 
faid office with all fees thereunto belonging, fo long as he * 
well and honeftly ufe and behave himfelf therein. 

The bufinefs of the under marflial is, for himfelf and Kfr 
men diligently to attend the llreets, and carry all fuch 1* 
grant perfons as they (hall find within the city and libertteft ■• 

Bridema% 
•1 ™ 



:ntfej 



I&mteupt. an 

drivel/, ot otherwife to give puni foment to them according to Enfant 

° * BuTLKE. 

le is likewife to fee that the fcavengers in every ward caufc 

ftreets and lanes to b£ duly fwept and paved, and that the 

jts of the wards carry away the foil. 

t is alfo required of him, that he mould ride of go abroad in 

night time, twice in every week at lead, to fee the watches 

f kept. 

Tiere are other duties belonging to his office of the like kind, 

the before-mentioned are the molt material. 

Tie principal qucftion is, Whether the place of under marfhal 

i office that concerns the adminiftration of juftice, and whe- 

by the ftatute of the 5 & 6 Ed. 6. c. 16. it b or is not law* 

to fell fuch an office. 

r it be an office which falls withirt the defer iption of the above 

tte, then the counfel for the bankrupt infilled it cannot be 

tbecaufe by the ftatute " If an officer concerning the adminiflra- 

n ofjxiftice, or king's treafure, caftles, &c. fell % or take anypro- 

fe or ajfurance, to have any money or profit for any office, r 2 12 1 

• deputation, he jl all forfeit his office, and the contratl Jhall be 

idt, and the buyer or promifcr, &C Jhall be djfabled to hold the 

4 office? 

he counfel for the bankrupt likewife cited the cafe of Wil- The office of 

Lowjield, who in 1 722, in conftderation of the fum of 400I. iJunflJeable^o 

by the lord mayor and court of aldermen of the city of London it concerns the 

ttei to the office ofaferjeant at mace, to hold quamdiu fe bene f*««wnof juf- 
*r*i 1 J /• j • /?• ? • j /t- t,ce ' The fun* 

Tit. The duty of his office is to execute the writs and procejfes as to a fworn 

led to tbefheriffs of London, and no f alary but what he gets by clerk of the fi* 

necution of fuch procefs. William Lowfield became a bankrupt, dcrk ' s <**<*• 

ffignees petitioned Lord Chancellor King to have his place fold 

hi benefit tf his creditors, and on the loth of April, 1733, the 

tr of the petition came on, when his Lordjhip was pleafed to de~ 

i that the place was notfaleable> as it concerned the execution of 

flf, and therefore difmijfed the affigneef petition. 

lie place of Mr. Brijlow one of the fworn clerks of the fix 

ks office, who was discharged from his imprifonment by 

late a& for the relief of infolvent debtors, was held not 

able. 

SIB. It appeared by the affidavits which were read in 

the petition, that 150/. only of the creditor's money had 

been laid out by the bankrupt in the purchafe of the faid 

bffice. 

W Chancellor : This is a matter of very great confequence, 
•ben a man is likely to become bankrupt, he may fell all 
1 Aodc in trade and effefts, and inveft the produce in one of 
kfideaUe offices, and in that manner cheat his creditors. 
Bfctc are two queftions which naturally arife. 
lit Whether this office is of fuch a nature, that the credi* 

lCW1 J?Z k°^ °* ^ k lai 7 belonging to it? 

ffi "Whether the creditors are bound to wait for thefe pro- 

itAty flccruej or may fell them by anticipation? 

Pa I am 



tn bankrupt 

Ex pant I am of opinion, tliat this is clearly an office witliln 

ing of the 34 isf 35 Hen. 8. c. 4. and 13 Eliz. c. 7. 

The words of the preamble to the firft aft are, " 

€( vers and fundry perfons, craftily obtaining into t 

cc great fubftance of other men's goods, do fuddenly fl 

" unknown, or keep their houfes, not minding to pay 

u to any their creditors, their debts and duties, but ai 

" wills, and confume the fubftance obtained by creel 

<c men, for their own pleafure and delicate living, 

The office of <c rC afon, equity and good confcicnce." Be it die 

cletly wYthh! U •&**, Thai the Lord Chancellor of England, or Keeper 

the defcription Seal, the Lord Treafurer, the Lord Preftdcnt, Lord Prix 

•J^g H<* 35 other of the King's mojl honourable Privy Council \ the Ch 

an&\$Etix! of either Bench, for the time being, or three of them c 

*• 7- upon every complaint made to them in writing, by t 

grieved, Jhall have poivcr and authority by virtue of this 

by their difcretions, fuch orders and directions as well 1 

dies of fuch offenders, as with their lands, tenements, fees 

and offices, which they have in fee fmple, fee tail, U 

term of years % or in the right of their wives, as much a 

[213] *ft> rt ght and title of the faid offenders Jhall extend to k 

then lawfully be departed with, and to caufc the faid land. 

offices to be appraifed and fold, for fatisf action and payment 

creditors* 

The ftatute of the 13 Eliz. begins with a recital of t 

a£L Ferafmuch as notwithjlanding the ftatute made agi 

rttpts in the 24th year of the reign of our fever eign 

Henry VIII. thofe kind of perfons have, and do fill it 

great and exceffive number, and are like more to do, iffome 

vifion be not made for the repreffon of them ; Be it enacted 

Lord Chancellor or the Lord Keeper for the time being, 

complaint made to him in writing, againflfuch per/on being 

a$ is before defined, f>all have full power, by commiffion 

great feal } to appoint difcreet perfons who Jhall taht by their 

fuch order, &c. with the body of fit ch perfon, &c. and alj 

lands, &c. andcaufe the faid lands ■, offices, &c. to bcappraifi 

This is an explanation of the former a£t> and chang 

rifdittion by vetting it in the Lord Chancellor or Loi 

only, the confideration of the former acfc is taken up, : 

it were, incorporated into this \ the moil rcmsrkab) 

cauje the faid lands and offices, &c. to be appraiftd and m 

notwithitanding Stone and Billingkurjl in their reading 

a&s fay, that only offices of inheritance are within the 

of thefc worth, yet I am of opinion this conftruciion ij 

to the exprefs words of the a£b, for terms of years rela 

ly to offices, not in lands only, but all other offices* 

An office ^m. Is this an office for life? It certainly is, for an ofi 

dtuftbue gef- diu Je bene gejferit, has always been held to be an offici 

telih.** and as thc y cx P rcis if in d^ Sc9tcb law, it is what a per 
out per vitam aut culpam. 

It has been admitted at the bar, that if die bankni 
not obtain his certificate, that the moment he receives 
Ut, from his office) it vefts in his affignees» 



But it is not therefore to be taken for granted, that, every Expcr* 
ing which does not immediately veft in the aflignees, is not B** 1 -* 1 * 
iblc to the creditors under a commiflion of bankruptcy. 
I will put you a cafe, in which I (hould not fcruple to con- 
ler a bankrupt as a truftee for creditors. 

Suppofe a tradefman is under a will made executor a.nd refi- wh ere a bank- 
lary legatee, and before his bankruptcy collects in enough of ruptisanexecu- 
eteftator's effects, to pay debts, and particular legacies, and jor and refiduw 
: remainder of the affets ftood out in mortgages : the aflignees iSSs'ddii, 1 * 
>uld not in law be intitled to get it in, becaufe the bankrupt has and particular 
in outer droit as executor, and yet, if he refufed, I (hould ^^^^ 
rtainly be of opinion the aflignees under the commiflion, not- ifherefufeato* 
thftanding the legal intereft is not veiled in them, *might by colled in the 
i aid of this court get in this part of the affets in the name of JSJaMdw'tf- 
: executor, and would direct accordingly. fignees have not 

the legal interait 
xdin them, the court would affift them to get in the remainder in the name of the executor. 

I think clearly therefore, that the aflignees may in this cafe by [ # 2I4 ] 
ticipation fell the office of the under marfhal of the city of 
ndon, and that it is not within the ftatute of Edw. 6. which 
icerns the execution of juftice, and for this reafon not like 
wjttl(fs cafe that did plainly concern the execution of juftice, 
d if it had come before me, I (hould certainly have made the 
tic order, as Lord Chancellor King did, that the petition (hould 
nd difmifled. 

The office of under marftial does not concern the execution 
juftice, but only the police of the city of London, and there 
re been laid before me feveral inftanccs of a&s of common 
incil for the fale of this office. 

Another objection has been ftarted by reafon of the words of 
: aft, which reftraiu it to fuch a property as a bankrupt may 
wt withal, becaufe this muft be done by the leave and alter- 
ation of the lord mayor and court of aldermen. 
This is only a medium, though to be furc, I have no autho- 
f to make an order on the lord mayor and court of aldermen, 
npciling them to accept of a fale. 

But what I (hall dire£l here, is like the common cafe of re- 
vals of leafes : I cannot make deans and chapters, &c* grant 
f<fe, and yet fuch orders are every day's experience, and the 
ne likewifc with regard to lords of manors in copyhold cafes. 
His Lordfliip directed, that the aflignees of Edward Rickard- 
i (hould agree with a perfon to fell this office, and then pro* 
fe fuch perfon to the lord mayor and court of aldermen, as a 
Jchafer, and if they approved of fuch purchafcr, the bankrupt 
is to attend the lord mayor and court of aldermen, and to fur- 
Bdcr his office to them, to the end the purchafer might be ad- 
teed thereto ; and the money arifing from the fak of tie office, 
nto.be applied for the benefit of the creditors; and if the 
fcbupt refufed to comply with this order, his Lordfliip de- 
wed he would commit him to the Fleet till he thought proper 
'com* . 
^ P3 N.B. 



ai4 Vanttupt 

E* fxrti^ N. B. Lord Chancellor, in arguing this cafe, faid, 1 

If U ffi L ***f officer in the army fhould become a bankrupt, 1 

thHmy C ihould ^ave no doubt but he had a power to lay his ha 

become bank- his pay for the benefit of his creditors ( i ). 

rupt, the court 

would lay their hands upon hit pay, for the benefit of his creditor). 

(l) Contra Cttbcart v. Blackwood, turn, 3 Durn.& Eafl. 63 1. 
I Csoke's B. Laws, 358. Flarty v. 0</- v. Montr ofe, 4 Durr.. & Eaft, 

December the 

azd, 1749. this Esc parte Butler and P uracil, the Affignees of Edward 

matter came on r* 1 z. 

again. * Bankrupt. 

p f q A T the time of iffuing of the commiffion, Richard] 
^Cafe 118. J^ 1>ccn heforc ft atC( ^ was pofTcflcd of the offic< 

Th " n " )ir ^ ia ^ °f tnc clt Y °f London^ and had rcfufed to fur 

being u^.der Pt t0 * et l ^° affignces difpofe of it, for the benefit of his < 

marflui of the By an order of the 3d of Augujl hit, the afiignccs ^ 

clt ? of c L ! nJ<m > at liberty to treat for difpoflng of the office, and aftci 

and refufing to . ' • 1 r ° r \- 11 

Surrender, the agreed with any perfon, were to propoie Iv. m to tuc 1 
aflignees obtiin- and court of aldermen for their approbation, and ij 
dirMfint'o/the P rove< ^ °f n,m » ^ e bankrupt was ordcrvd to attend 1 
office, B. agrees furrender the faid office to the lord mayor and cour 
withth affignees m en f to the end that fuch perfon might be admitted 

o/th/officeat * ** cc nl tne u ^ ua ^ manner. 

850/. nd on the Mr. Buck accordingly agreed with the affignees foi 

/aft^wL^efent ^^ ° f tllC ° ffiCC> ** ^ pdCC ° f *$° lm ™ A ° T1 th ° '' 

ed to the courtof ^ber laft was prefented to the court of lord mayor and 
lord mayor, & c . who approved of him, and were ready to take the I 
^ a ^°^ of furrender, but he refufing to do it, upon an applicatic 
ready to tak? ths Chancellor, he ordered Richard/on to be committed fc 
bankrupt's fur- tempt, and a warrant iflued accordingly, but he thcr 
refufin* "vis* f con( ied, an ^ h.ith kept out of the way ever fince. 
ordered to h- It was therefore prayed by the prefent petition, that 

cornrn:: ec fr fliip v/ould make an order on the court of lord mayor ; 
and hath 1. f 'jr.- mcn t0 admit Mr. Buck, in the room of RichardJon y t 

ded ever fire:, office. 

?*!£• pre .u nt The court of lord mayor and aldermen did not think 

petit; "5n that . . J 

L*rd Cbancdkr juftified in admitting Buck, witliout an adtual furrenc 
W0 "! J f M Cr thc bankrupt, and therefore the principal end of this applic; 

r..r or,° Of/, to tlliat tnc ) r m *g nt DC kk * n d°i n g i f > ai *d to fupply the 
aJmit/?. in the furrender. 

r.x>.n of^//: fa v^- j t j,pp ear cd that a conftant perfonal attendance was 
Thip fjid, he " irf this office, and that by the rules and cuttoms of the 
could not nuke lord mayor and aldermen, the perfon who neglects or 
an order upjn • c fuC;h attcru i anc «. m ay be totally difmhTcd, and th 

th* Jord nruyor, o * j J t » 

&c. v% a.Jmic B. iequence tncreof, the court may admit any perfon they 

a* it v/as intirely 

difcreriomry in them, »ut recommended to the lord mayor, C£c, upon thc bankrupt's lion. 

by which his office was forfeited, to difmifs him, and admit B. 

H-re" of' lf?al lzrd Ch ^ f!lor faI(1 » Ilc w *s ""» doubt what direaions 
eojynoldisin give, for he was of opinion, that he could not make 

on? 1 and the 

eijuitihlt in another, ibocoutt can oroar the truftea to furrend::, thrvgh ceflvif ut trufi refill 



'Bftitfctupr. 



41 



pon the lord mayor and aldermen to admit Mr. Buci, as it 
as intirely difcretionary in them who they would admit, and 
at he could not fupply the want of a furrender here, as in the 
immon cafe of a copyhold, where perhaps the legal intereft 
ight be in one perfon, and the equitable intereft in another, 
which means the court can order the truftee who had the 
jal intereft to furrender, though cejluiqut truft refufe9, but here 
i legal and equitable intereft are both in Richardfon. 
But to the end juftice might be done to the creditors, he re- 
mmended it to the lord mayor and aldermen, upon Richardfon* % 
ti-attendance by which his office was forfeited and vacated, to 
(bifs him, and to admit Buck in his room, upon payment of the 
o/. and the alienation fine to the chamber of London. 



ai6 

Ex fern 



Jg) What Jball cr Jhail not be faid to be a Bankrupt's EJate. 

mm, Aflignee of Roger Williams a Bankrupt, v. Heathcote and oaoler the 17UU 
Martyn. I74^ 

\h under the Divtfon, The Conflrutlion of the Statute of i\ Jac. !• 
cap. 19. with refpeel to Bankrupt's Poffeffton of Goods after 
Alignment. 



Ex parte Richard Flyn and Richard Field Merchants* 
Vide under the fame Divifion. 



•l d # *74*» 



(Hh) Where there is a Truft for a Bankrupt's Wife, 

Ex parte Elizabeth Greenaway. 
Vide under the Divifion, Contingent Debts. 



Secmhm- th* 
*Jd, 1740. 



Ex parte Groome. 
Vide under the fame Divifion* 

Walker and others v. Burrows. 



0/fekr the aoth* 
*744* 



T **7 ] 

tfomtmber th» 

** under the Diviftcn, Where Affgnees are liable to the fatnt Equity ' * 74S% 
with the Bankrupt. 



Grey v. Kentifli. >frth«n^ 

•*&fc Baron and Feme % under the Divi/ion> Rule as U a Poffi* 
bility of the Wife. 



P4 



■ . act Elizabeth Michell. 
t .. .t*r -st Divifion, Contingent Debts. 

;«. . -: trading to male a Man a Bankrupt* 

Hlghmcre v. ALlloy. 
-*r :i Divifion, IVho are liable t§ Bankruptcy* 

Ex parte Caringlon. 
Vide under the fame Divifion. 

Ex parte Meymot. 
... »iut* tie Divifion, What is cr is net an aft of Bankrupt cf* 

•■ -uns'l* and Gibbons, Aflignees of Alexander 1 „, . ._ 
, ,,„, a Bankrupt. j Pla »".fF S . 

*... : 7?ut&*, Taylor, and Wilfon, ■ Defendants. 

"* .. iiff*7/r *£/ Divifion, Hule as to Drawers and Indorfors of 
Bills, &c. 

Ex parte Wilfon, and Ex parte Bradfhaw. 

v • - % 

J O R D Chancellor : The claufe in 5 Geo. 2. relating to 
\° ^ «*-* dealers as hankers, £sV. took it*6 rife from that part of the 
^ ■• *v* % .| y.i c -. 1. relating to Scriveners, who were more numerous 
HV \ *;\ '\'* ili.ui in latter days; for bankers have taken upon them to a& as 
.. -, : ** * gsrkmcrs, and therefore made it neceffary for the legiflature to 
^1*. **^«. 4i | 4 j ifanitrs, as being liable to commiflions of bankruptcy. 
jCU * *' wu M r « Wilfon being an agent to 26 regiments, will not make him 
JLv * "**«»i a bankrupt, nor will it exempt him from being one. 
^* Tf*X" ^ * s ^' ' 1C cou 'd ^e no hanker becaufe he kept no fhop. 
^*v A Scrivener does not keep an open (hop, and yet as he re- 

\ *^*m •W'»i reives money belonging to other people, and places it out on 
v ViA.t. will (Vnirities, which is the bufmefs of a Scrivener, he may be a 
£, % »k..h» bankrupt. 
•>fttuik»|iim So may a perfon adting as banker, though not keeping an 

, ,.'1 p/*i. J lis keeping his cafh with Drummond, and paying, from 
fc* \K«iJut/yi739 to l 15 l > 3°» 0o ° '• a month, in all three millions, isin- 
fifted to be very itrong, if not conclusive evidence, that he was 
1 banker himfelf. 



x A*Jh4/yi73 



OSattlrupt sit 

nconceivable that he could lodge fuch fums in another, • ****** 

hands, and have no profit or allowance. ".tow. 

prcat point is, That here is a doubt upon the evidence, A commiflion of 

le weight of evidence had been againft the commiflion, hink P 1?tc j\ s . M 

:ourt will not fuperfede it, becaufe a commiflion of bank- jj^J^ a w ^ 

s as much ex debito juftitia as a writ, [ 1 ) ancl I know no andnoinftance 

where this court have fuperfeded a commiflion, without ]T hc " *• * ourt 
. ^ , r . r « • « ti fuperfedet it, 

r an liiue, unlets it appears very plainly to be taken out without dire&- 
ntly, or vexatioufly. inganiffue,**- 

ChanaUor direfted the iflue to be tried in the court of ]££**£* 
tench in Middle/ex. fraudulently or 

vcxatiouflj* 

BachvelPs Cafe, Z Cha. Ca. 191. 1 Fern. 152. S. C. 
) Rule as to Acts of Parliament relating U Bankrupts. [" 219 ] 

Ex parte Burchell. 4***** 

174s. 
r the Divifiony The ConfruBion of the Repealing Qaufe of 
the tenth of Queen Ann* 

Ex parte Lingood, mm . 

r 5 My the lath, 

•r the Divifiony Rule as to a Certificate from Commijfitners 
to a Judge. 

Walker and others v. Burrows* Nwmhtr tht 

«th, 1745. 
Vide under the Divifiony Rule as to Afflgnees. 

Vhat is or is no? an Eleftion to abide under a Commifftom. 

Ex parte Capot. a^V the 461, 

"739* 

TER a commiflion of bankruptcy ifTued, and two di- Cafe 120. 
lends made in confequence, one of the affignees brought Anaffigneeupon 
1 againft the bankrupt, and laid him in execution for refunding what 
ue of the debt, and upon application to the Lord Chan- J 1 !^^* 1 .** 

/»• • 1 * . » . /1 • under two dm- 

ree queltions were made by his Lordfhip. dtnds, allowed 10 

make his elec- 
tion, to proceed at law againft the bankrupt. 

If the creditor was intitled to purfue the perfon of the ^onfid^d tank- 
:> and yet receive a proportionable benefit under the nipuai.fraudu- 
<m, which he faid he thought was by no means to be * ent to******* 

' but the more 

. modern, as un- 

Kt, and opoa tbefe ftarutes have the applications been made, W compel crtditor* who pro- 
nUiwaj, to make their clc&iuo. 

done. 



cl*""' done, as the law of bankrupts now ftands : The old laws c*n- 
fidcred bankrupts as fraudulent infolvent*, and they arc often 
called offenders, (i) but the more modern laws have confidered 
them as unfortunate infolvents, and upon thefe ftatutes, thefe ap- 
plications have been made to the court, which has obliged cre- 
ditors who were proceeding in the double way, to make thriar 
election. 

The next queftion was, If he was now at liberty to make hi* 
election, or whether he had not made his election by taking the 
dividends. 

But upon refunding what he had received as dividends, his 
Lordfhip gave him leave to make his election. 

The third queftion was, If he upon refunding, andcleftiflg 
to proceed againft the pcrfon, mould have liberty to come inufr ' 
der the commifiion and prove his debt, fo as to diricnt from, or 
a {Tent to his certificate (2). 
The reafon why Lord Chancellor faid, feveral fuch orders were made by Lord 
* U ? Ta' t0r Talfcty and accordingly fuch order was made in the prefent cafci •* 
proceed at'law, an< ^ * iC ***<* r ^ e rea f° n of the court for fuch order was, to make ~ 
AaiTftill beal- the remedy againft the perfon effectual; for otherwife the pcrfon. . 
tewed to aflfcnt b y t h e rc ft f the creditors, be abfolutely difcharged &0A i 

©r diflent to the , ; 1 t- 1 t« ■• 1 1 r* 1 1 & 

Kankrupt*8 cer- the remedy which tins creditor has elected to take. ; 

tificate, is to ! 

amaJte the remedy againft the perfon effectual. " 

/l) ArJtBrvmley v. Gootlere^ 77. fey % l£ Ex parte Dvrvillict** Ex f*t^ 

(2) Set the ntJtt cafes, Ex parte Lind- ti'ard, ante 153. ; 

I 
aMrffrffac Ex parte Wzrd. \ 

Vide under the Divi/ion, Rule as to a Petitioning Creditor* 

GBober&t s6th, Ex parte Lindfey the Bankrupt, 

*745- 

Cafe 121. a Petition to be difcharged from a commitment at the fuitof 
Sec the preced- jf\ onc Henkle, who has proved a debt under the commiffion* 
n* Ctf hft d" ^ or ^ Chancellor : The creditor mud either waive his piorf 
• creditor u!!der 8 under the commifGon, or make his election to proceed under it, 
a commiffion of but notwithftanding he elect s to proceed at law, he may ftiB 

to^rocced af $ afffnlt ° r diflhlt t0 &* certificate - 

law, he may ftiii It not being clear, whether the debt under the commiffion iK. 
iflentordiffent the fame for which the action was brought, his Lordfhip rf* 
•0 the certificate. j ournC( i ^ petition for want of the proceedings under the com* 
million which were miflaid. 

^r./th€ 7 th, Ex forte Lcwe*. 

1746. 

Vide under the Divi/ion, Rule as to a Petitioning Creditor* 



•Banfcwpr; *ai 



Ex parte Dorvillicrs. ***Z*ft the 7*, 

1751. 

A N application by the petitioner the bankrupt, praying that Cafe 122* 
7\ Mcfes Moravian who has brought an a&ion againft him, Sec ^ t two ' 
id alfo proved a debt of 800 /. and upwards under the commif- preceding 
on, may make his cle&ion to continue under the commifi}on, cafcv 
r proceed at law. 

Moravia alone, being the majority in value of the creditors, 
hofe himfclf aflignee. 

Lard Chancellor was doubtful whether the circumftance of Thought perfon 
iufing himfelf is not making an ele&ion to proceed under the ^Int^henut 
fcmmiffion ; but on his ele&ing in court to proceed at law, his elea to 1 proceed 
Lordfhip made an order that Moravia (houid be discharged as a »tlaw, orunde? 
xrditor under the commiffion, but ftill allowed to a,ffent qjdif- * e< * nunlfl * 0lfc 
Tent to the bankrupt's certificate. 

(Mm) Rule as to Profecutions againft Bankrupts for Felony in not _. ^r\ jfr 
furrendring himfelf. s£*^*+&, *Z?S>, 

Ex parte Wood ; in the Matter of Comerlan a Bankrupt. ^Jjf Ae 7 ** 

AN application to the court that the commiflioners (houid ^e^t^one? 
admit him a creditor for 21/. upon a note of hand under applies for an 
&i$ commiffion, and that the clerk of the commiffion may be ordcr u P° n *&* 
ordered to attend at the Old Bailey with the proceedings under S^&JSJ! " 
[he commiffion, upon a profecution, againft the bankrupt for ditor fori 1/. 
felony, in not fin-rendering himfelf according to the dirediioiu "P 01100 ^ ™* 

rin r i- *• 1 1 r s~> in that the clerk of 

>rthe att of parliament of the 5th of George the Second. ^ communon 

may be ordered 
* attend at the Old Bailey, with the proceedings upon a profecution againft the bankrupt for felony, 
in not furrendring himfelf according to the directions of the a& of parliament. As the petitioner hat 
Mtyet proved his debt, if not made out to the fatisfaction of the commiflioners, it may be rejected J 
although fuch a profecution may be carried on by a perfon who is not a creditor, yet, by the words of 
Ae*a of parliament, it looks as if the legislature intended there fhould be a concurrence of the ere 
♦fco under the commiffion; and as this is a penal law, a court of equity will not lend its aid to fuch 
a fntecution, by ordering the clerk to attend with the proceedings at the Old B alley > and therefore 
jiH not grant the petition. 

The bankrupt is a foreigner, but lived feveral years in Eng- 

\ W, and went to Holland before the commiffion was taken out, 

baud ftayed there till the forty-two days were expired for his 

fcrendring himfelf, and about fix weeks after the time expired 

Warned to England. 

Lord Chancellor : Though fuch a profecution may be carried 
to* by a perfon who is not a creditor, yet by the words of the 
■ft of parliament it looks as if the legiflature intended there 
would be a concurrence of the creditors under the commiffion, 
. In the prefent cafe the petitioner has not as yet proved any 
w, and when he goes before the commiflioners, if he does 

not 



22* "Bankrupt 

**/"*« not make it out to the fatisfa&ion of the Commiffioners, he m: 
be reje&ed (i). 

Affidavits have been read of the aflignecs and credito 
whofc debts amounted to 1800/. and upwards, that they a 
very well fatisfied with the account he has given them of tl 
ftatc of his affairs, and that they believe he could not have mao 
a fuller difcovery or difclofure of his eftate and effects, if h 
had appeared at the third fitting of the commiffioners at Guild 
hall) which is the time appointed for the bankrupt's fiin&inj 
his examination. 

This is a penal law, and a fevere one, for it reaches to tb 

life of the bankrupt, and therefore a court of equity will no 

lend its aid to fuch a profecution, by ordering the clerk of tb 

commiflion to attend at the Old Bailey with the proceeding 

under the commiflion, but the petitioner mud go on in fuel 

manner as the law prefcribes to prove him a bankrupt, and ; 

felon within the intent and meaning of the a& of parliament 

and therefore would not grant that part of the petition, whid 

relates to this intended profecution of Comer/an the bankrupt 

Where t bank- Lord Macclesfield did in more inftances than one fuperfede J 

nipt did not fur- commiflion of bankruptcy, where the bankrupt had not funtfl 

*nderhimfclt* inhered himfelf within the 42 days, if there did not appear to b 

there did* not *p- any intention in the bankrupt of defrauding his creditors by no 

pear to be any appearing within the time appointed, and where his abfenoi 

£^tg n w»cre-P roceet ^ rat ^ ier f rom an ignorance of the conference or ao 

di con, Lord A&<:- cident ; and his Lordfhip took this method to prevent a pro 

<teifieU,\n feire- fecution. 

ftperfedeaMhe But * cre > s n0 occafion to do any thing of that fort here, a 
commiflion, in it is not probable the petitioner will be able, upon the circum 
order to prevent ft a n CCS of this cafe, to fupport fuch a profecution (2). 

tion. 

(1) Ex fart f Simffon, ante 71. Rep. 47. Ex parte Graham, iUd. 48. 

(2) See Ex parte White ^ 2 Bra. Cha. 



(Nn) Rule as to Contingent Creditors in refpctl to Dividends* 



tftf^r the zoA, Ex parte Groom. 

*744. 

Vide under the Divj/ion, Contingent Dclts* 



Dteember the Ex parte Elizabeth Michell. 

* 3 d, 1751. 

Vide under the fame Dkvfion. 



(Oo) Rule as to mutual Debts and Credits. 

January the 22d, 1 741, and March the 31ft, 1742. 

parte Henry Lanoy Hunter, Efq. In the matter of James 
Hunter and Loth Specht) Bankrupts. 

Cafe 124. 

IT R. James Hunter and Mr. Loth Specht were partners in «*• lcn <k * ^m 
J. trade, and the terms of the articles were, that i)ie flock p™™ y ?™ 
ild confift of 4500/. and .that this fum of money (hould be own fecurity, he 
in by Hunter only, and that he fliould be intitled to two- if «ds the fame to 
ds of the profit of the trade, and Specht to the remaining ^e^^oini * ? 
-third; but as to the principal fum of 4500/. the articles commiffion h 
rided that it (hould belong wholly to Hunter. Under thefe J*? 1 out ' A : 

. r»« t ^ 1 ; 1 1 t**tt not come 14 

actions the partners entered upon trade, and more money « 5 a creditor up- 
ig wanted to carry it on, James Hunter applied to his bro- on the joint ef- 
:Mr. Lanoy Hunter, the petitioner, who in the year 1733 fu^mme^ 
meed him, at three different times, upon his note of hand, acdy and direa- 
fum of 1500/. at 4 per cent, and afterwards gave a bond for l y> ™ lth ^ n * 
money, in which he was fingly bound ; for Mr. Spec ht was &£ crcdXwT 
then privy to any part of the tranfaction, but agreed after- but by way of 
rds that James Hunter (hould, in his own name, lend this aded^ftandT 
1 to the partnerflnp ; and in the book in titled, The private ac- ing in the place 
itofca/b, the partnerfliip (lock is made debtor to Mr. James of chat partner 
titer for the 1500/. and intereft for the loan of this money, ^ne^tothe 
'He rate of 4 per cent, to be allowed him out of the produce ufe •*' the pan- 
tile patrnerfliip trade. nerfcip trade. 
Mr. James Hunter having in his pofleflion for fafe cuftody 
mty-nve Ssutb-fea bonds, and eight EaJI-India bonds, which 
re the petitioner's property, did, without his knowledge, up- 
the fecurity of the feveral bonds, borrow of the bank of 
\\and in November 1735, 3000/. and afterwards lent that. 
n too at the like intereft to the partnerfhip trade, and made an 
ry in the fame manner with the former made in the private 
h book. 

Mr. James Hunter and Mr. Specht having become bankrupts 
July laft, a joint commiflion of bankruptcy iflued againit 
m as partners, and they were declared bankrupts, and Sa» 
d NiebjI/on chofen aflignee. 

The petitioner applied to the commiflioners to be admitted 
reditor for the two fums of 1500/. and 3000/. on the bank- 
it's joint eft ate, who refufed to admit him to prove the 
le; and therefore prays that his Lordfhip would order that 
petitioner (hould be admitted a creditor upon thd joint 
te for the feveral demands ; and in cafe the court fhould 
think fit to admit the petitioner a creditor for the feveral 
ts under the partrterftiip eftate, that then he might be ad- 
ed a creditor for the fame, upon the refpeftive feparate 
t of James Hunter* 

To 



«h tamttupi 

Ex ftartt ij* ;^ t j t j e t ^ c petitioner to come upon the joint eftate, it \ 

* fuggcfted that though the money was borrowed by one of die p: 

ners, and fecurity given by him only, yet, as it came to die 

of the partnerfhip, that he ought to be admitted to come in 

a creditor upon the partnership* 

Lord Chancellor : My opinion is, that the petition oughi 
Be difmifTcd, but without prejudice to the petitioner's bri 
ing a bill, if he (hould think proper, to have the benefit of 
fame matter which he now infifts on. 

It has been contended on the part of the petition, that 
money in queftion was jointly lent to the partners j but tha 
• exprefsly contradl&ed by their own affidavits, for they ad 
particularly the 1500/. to be lent to James Hunter with an 
tention that he (hould apply the fame for the benefit of the p 
nerfhip; the confequsnce of this is, that here are plainly 
contracts, one as between Henry Lanoy Hunter and James h 
ter, the other as between James and his partner. 

As this is the cafe, there is no ground for the petitior 
coming in as an immediate creditor for this money upon 
partnerfhip eftate ; but then it has been faid that by a circ 
the petitioner may have the fame kind of relief; for if 
money which was advanced by Henry to James was lent 
James to the partnerfhip eftate, then, as James might 1 
come in as a creditor for this fum upon that eftate, the j 
tioner will be intitled to ftand in the plaGe of James, aii< 
have the fame remedy as he would have had. 

But I do not know any determination of the court w 
has gone fo far in a cafe of this nature. Mr. Murray has 
this matter in another way •, he fays that there is no occ; 
for the petitioner to make ufe of a circuity in this cafe, 
that he ought to be let in originally upon the partnei 
eftate, becaufe Specbt had no intereft in the capital, for b] 
articles, if James fhould happen to die during the life of fy 
the whole principal of the 4506/. was to go to the execute 
James. 

But it would be going too far to fay, that any fecret aj 
ment which partners enter into between themfelves, can hi 
thofe that immediately trufl the partnerfhip eftate from In 
their compleat fatisfa&ion out of it. 

The only method therefore wherein the petitioner can 
his fatisfa&ion out of the partnerfhip eftate, is by way oi 
cuity by ftanding in the place of Jatnesi 

Confider what great inconveniences would follow, in 
this do&rine fhould prevail. In the firft place, thofe dial 
plainly creditors upon the partnerfhip eftate, muft be at lil 
to controvert whether the fa& is as ftated by the articles, 
the whole 4500/. was brought into the partnerfhip eftal 
Hunter only \ in the next place, fuppofing this was the 
yet, in refpeft of ftrangers, the money muft be confider* 
brought into the partnerfhip eftate by both (1). 

(1) See Craven r. Wlddms, z Cb*. Ca% 119. 



bankrupt *h 

tor thefe reafons his Lordihip faiii he would not determine £* fam 
lis matter In favour of Mr. Henry Lanoy Hunter, upon a peti- How ™<» 
on, but would have him to bring a bill for this purpofe, if he 
lould be fo advifed. 

Upon which the Attorney General, who was counfel for the [ 225 ] 
etitioner, faid, that in Lavitigton v. Paid, before Lord Talbot, 
) the bed of his remembrance it was determined that in cafes of 
lis nature the party might be allowed to have his fatisfa&ion out 
f the partner (hip eftate. The petition upon this was ordered to 
and over to fearch for precedents* 

Upon the 31ft of March, 1742, the petition came on again, 

Mr. Attorney General, who was counfel for the petitioner, Where one 
OftEdered him as Handing in the place of the bankrupt, and as £ a " ncr tokes _ 

l n- • r 1 1 1 1 * ** ** out more money 

be partnerihip was increased by the money lent by Mr. James from the part- 
itnter 9 he faw no t eafon why one partner might not be a debtor "erfliip ftock 

another, $nd in fuppoxt of this argument he cited a cafe, ^"untedtoT 
x parte brake, December the loth, 1 735, before Lord Talbot, the other ajs« 
vbere there were two partners, and one had taken cut more money f rem r, s ht *° c ^ nc 
heparinerjhipfock than bisjbare amounted to, and therefore became r ate"ettatc of tha 
xiAtor for fo much \ and my Lord Talbot ivas of opinion, that the \ .'•.rtner fntamx 
Wtmrfbip creditor had a right to come upon the feparate eftate of the 

\ertner who was fo indebted ( 1 ). 

Mr. Murray cited a cafe ex parte Gilbert Brown, the 4th of Tw0 partner* 

March, 1725. There two partners agreed to borrow afum oftn*. afimVof l^eT, 

*}for the ufe of the partner/hip, but one of them only gave a bond for but one only 

farrirrr the payment, and the other was a witnefs to it-, this money g :vl '*l>ond, 

% i * j • ,? n l 1 r *i x * n-. ..-^ and the other 

vas afterwards entered in the enjo book oj the partnerjhip, a joint on jy a w i tn efs 

mmffton taken out againjl them, and the obligee denied by the com- to it, the money 

Mmers to be admitted a creditor 5 but Lord King en his petition x)™^****- 

w of opinion that he ought to Le admitted, and ditctled ac~ book of the 

t£ngly m partner/hip, a 

80 in the prefent cafe* the partnerQiip being in want of mo- fi "\akea^ 
sy, one of the partners borrows it, and gives a feparate bond obligee is inti- 
ideed for it, but ftill the money came to the ufe of the part- tle ? lo bc =*T 
srfliip; then the queftion will be, whether the obligee (hall be |J£ e 
knitted to come in as a creditor upon the joint commiilion? 
lit fttppofe your Lordihip fhould be of opinion that the obligee 
ibiMft come in upon the joint eftate, I would fubmit it to you 
at he can clearly come in as a creditor upon the feparate eftate 

1 James Hunter, , for if there had been no bankruptcy the 
wtners could not have made a dividend of the joint ftock, till 
Us money, which Jatnes Hunter lent to the partnerihip, had 
cen firft taken out of it. 

Joint creditors have no right to any thing but what is pro- 
fcrly the joint eftate, and if this money had not been lent, die 
ptnerihip fund would have been 4500/. lefs than it is now ; 
fed it would be an extreme hard cafe, where there has been 
fcch a large increafe of the fund by the means of a third pcrfon, 
the fhould not be allowed to come in as a creditor. The rules 
ftaMiftied in this court in relation to bankruptcies are net 
upon the afls of parliament, merely, but upon equitable 



'•V/Mr Ex parte lbtfm, Fcf.Jun. 226. 2 Cha. Ca. 139. 
"~~ T. Knight % 2 Cha. Kep. 

con* 



92* ttaiffctttpt. 

Bx pit* conftruftfons ; and to lay it down for a rule, that nothi 

if ux Tit. Entitle a perfon to come in as a creditor upoa the joint eft 

where partners arp jointly bound* notwithftanding the 

has been applied to the ufe of the partnership, is not 

equitable one* 

£ Zt6 2 Mr, Brown e contra. 

There is no foundation for the petitioner to be admittec 
ditor on the partnerfhip account, as this is a difpute betwc 
lets of contending creditors. 

No doubt but payment of money may raife a confide 
and make it a debt, and fo vice verfa it may not raife a co 
ation ; but it is pretended that at that time this money \ 
Tanccd, Mr. Henry Lanoy Hunter knew the partnerfhip w< 
liable to anfwer it to him 5 it appears from his own eviden 
he lent it merely upon the credit of his brother Mr. Jame 
ter % and if it fhould extend further, it would be attendee 
great inconveniencies. 

The open and publick books do not fncntion it as a lo 
is only a private cafli account, which they might have f 
they pleafed, as it was intended for their private ufe only, 
creditors would never be fafe, if near relations of bankruj 
in this cafe, may fct up a demand or not againft the pa 
(hip, juft as the event turns out, viz. whether the fc 
eftate or the joint eftate of the obligees will anfwer beft. < 
Mr. Lanoy Htmter y who lent this money, have brought an 
againft Mr. Specht the other partner? I apprehend clcaj 
could not. 

The next confideration is, whether the petitioner ha 
right to ftand in the place of Jama Hunter^ and by that 1 
be intitled to recover this money before the joint ft< 
divided? 

I will not difpute the petitioner's right, if the bankrup 
any, and therefore confider it merely as the bankrupt's cafi 
fuppofing there were no feparate creditors, then the \ 
fund in the firft place muft go to fatisfy the partnerfhij 
ditors j and the bankrupt, if there is any furplus, is intitl 
that only* 

Lord Chancellor : \/l 9 q:ieflhn 9 Whether the petitioner ii 
titled to come in as a creditor, upon the joint eftate of the 1 
rupts immediately, and dire&ly with the reft of the par 
ihip creditors? 

a</, quejlion. Suppofing he is not immediately and diredl 
titled, whether he is not intitled to come in by a circuity, * 
this court allows, as ftanding in the place of James Hunter^ 
has paid the money to the ufe of the partnerfhip trade? 

The firft queftion ought to be confidered in the firft placCj 
caufe if the petitioner is immediately intitled, then there i 
occafion to have recourfe to the circuity. 

But I am of opinion that he is not immediately and tin 
intitled, and the evidence upon his own affidavits rather < 
againft him, for a man muft be a creditor by force of foi 
tra&, either exprefs or implied : as where goods are 
though no exprefs contraft, the law implies one, and an 



rill fie ; but according to the account Mr. Specif, the other *x fart* 
•artner, gives of this tranfa£Hon, Mr. Lanoy Httnfer had neither HuNI, »* 
nexprefs nor implied contra£r with the partnerfhip, 
Mr. Specif agreeing that James Hunfer mould, in his own 
ame, lend this money to the partnership, explains in what 
aimer Specif meant to borrow money for the ufe of die part- 
rrfliip, and docs by no means prove that he intended the part- 
rrfhip fund (hould be a fecurity to the petitioner* 
It is very true there might have been a loan to the partnership, 
twithftanding the notes were given by one of them only, and 
the contract had been originally between the petitioner and 
th the partners, though the bond is executed by one only, yet 
would be confidered as a collateral fecurity, and both of them 
mid have been liable notwithstanding. 

Upon the whole of the queftion James Hunfer only appears to 
relent the 1500/. to the partner (hip, and the petitioner docs 
t feem fo much as to have it in his thoughts. 
As to the 3000/. borrowed of the bank upon the fecurity of 
: South -fea (lock, and Eqft-India bonds, which were the pro- 
ty of the petitioner ; Mr. James Hunfer, by a mifapplication 
1 abufe of his trufl, has procured this money, and lent it 
on the fame terms, and in the fame manner, as he did the 
oo/. to the partnership trade, as appears by the private ca(h 
mnt. "» 

Now in that book, James Hunfer is made debtor on one fide, 
I per contra creditor, and therefore I cannot call it the account 
any other perfon. 

So that upon trie firft point, I am clearly of opinion, that the 
tkioner cannot be dire&ly and immediately intitled. 
As to the fecond queftion, his coming in by way of circuity, 
>vn formerly I was very doubtful, but now I am of opinion, 
K Mr. Henry Lanoy Hunter is this way intitled. 
The principal obfeurity in this cafe has arifen from his coun- 
fil infilling, that the petitioner ought to ftand in the place 
^James Hunter, who is one of the bankrupts ; for by this 
to* they have confined it merely to the feveral lights in which 
iftands. 

Jhw it is certain, James Hunter himfelf can have no fatisfac- 
|l but out of the furplus which (hall remain after the joint 
(titers are paid -, but as between different forts of creditors, it 
faherwife. 

5 truth of the thing is this, Henry Lanoy Hunter being a fe- 

l creditor to James Hunter, is intitled to have his fatisfa&ion 

f every tiling which can be confidered as the feparate eft ate, 

x, and therefore the rules which the court go by, with 

I to the diftribution of bankrupts' effe&s, will be a material 

Won in this cafe. 

creditors, where there are no feparate, may exhauft J^^jj^ 

joint and feparate eftatc, till their debts are paid, and ^fcp irt ^may 

1 * will not be intitled to a (hilling till the joint ere- •shiuft both the 

joint and t'ep*» 
*«fc«0 there trc bothjeint md fepartt* creditors, the joint eibte fhaU be applied* * 
fftljriafc t»4*elt|«iatt cftue, w ttc fctUfcOioa of d* bpartce crt4Uoft. jf 

Q^ ditOtt 



Bx parti ditors are fully fatisfied ; but where there are feparate as well s 
joint creditors, tho* as I faid before, in the cafe of the bankrupt 
the feparate eftate (hail be equally applied ; yet as between jo\ 
and feparate creditors it is otherwife, for the joint eftate (hall i 
applied to the fat is faction of the joint, and the feparate eltate 
the fatisfa&ion cf the feparate creditors* 

Suppofe a joint commiflion again it two partners, and a fcpa 
rate commiflion likewife, and die aflignees under the joint, po/Tc/ 
themfelves of any fpecifick part, the bankrupts themfelves coul< 
not take away this fpecifick part, tho' they had a diftinft and \ 
joint property in it, yet it is every day's experience, that the af 
(ignees under the feparate commiflion may do it, upon applica 
tion to this court. 

Suppofe thefe partners had never become bankrupt to die em 

of the partnerfhip, and they had fettled accounts, mud not tb 

demand Mr. James Hunter had upon die partnerfhip be take) 

out, before a divifion could be made of it. 

Ifd-ewbeafur- This (hews clearly, diat Mr. James Hunter was a credito 

P^cftatc?" u P° n *** J oint ftock > thcn lt Allows that the creditors o 

the joint crcdi- his feparate eftate have a right to this in the firft place (i) 

""uforit^ indeed i{ AcTt Should be any furplus of the feparate eftate 

rmpt ha* n# *&** &** money is paid, the joint creditors will be intitled to it. 

right to any And this determination is according to the rule of the court 

!« n f5u "fctilfi- * n rc g ard to tnc diftribution of bankrupts' efFe&s upon a viewo 

td. the different rights of creditors. 

(l) Sedvide ex parte Burr ell t I Cooke's B. Laws 556. Ex parte Pine, Hid* 

Jfofmfa^th, Bromely and Others, Creditors of Sir Stephen 1 p Iaintifii# 
***** Evance f ■ . ■ ■ J 

Goodere, furviving Aflignee of Sir Stephen 1 j^^fa^ 
Evance % and Others, — — ■ J 

Vide under the Divifion > Rule as to the Certificate of a Bankq 

Gad* »otk, 23* parte Groome. 

Vide under the Divifion, Contingent Debts, 

J****, mt. £ x part D ceZ e. 

Cafe 1*5. "|i^TR» Norton Nicholls, a merchant, borrowed of the pe 
A packer may jLVX tioner tlic fum of 500 /. for which he gave a note of hal 
retain SfJ^ 11 afterwards he fent the petitioner, who was a packer, fix bales 
price ofpacking, d 01 * 1 *° P*ck and prefs ; (ome time after Nicholls paid off t a| 
and if he has an- of the 500/. and intereft for the remainder, and then W 
totted At ^.Petitioner if he would have the whole paid off, which I 
fame perfon, the petitioner declined, and then the old note was delivered 1 

jeodi fluil not 

he *kca fan to till he hai paid the whole, aotwithftandiof the dchtotb become « btftknftu j 



•744- 



T*anfcrupr. 22* 

andanewone given for the remainder : before the remainder P* P art * 
was paid, -and before the fix bales were taken out of the petition- "* x * 

er*s cuftody, Nicholls became a bankrupt, and it was agreed 
between the petitioner, and the afiignees 6i Nicholls under the 
commiflion, that it fhould be determined in a fummary way, r -« 

upon a petition to Lord Chancellor *, whether the petitioner could L ^ ^ 
retain the fix bales till his whole debt was fatisfied. jfCsUM++*f r.Jil** 

N. 1$. There were no goods in the hands of the petitioner,/ / jfreet^ J7& 

when he firft lent the money, nor had there been dealings 1 -^— 

between them for many years. /ifcp£4~ t>-&***+ 

It alfo appeared there was, at the time of the bankruptcy, *-&+**: ^j* {. 4 
ly /. due to Dccze for the packing and preffing thefe bales, and ~~^ 

there was due from Deeze to Nicholls near that fum for wine. 

Lord Chancellor : I am of opinion that under the circum- 
ftances of the prefent cafe, the afiignees have not a right to take 
thofe goods from the petitioner, without making him a fatisfao 
don for his whole debt. 

Notwithftanding the rules of law as to bankrupts reduce all 
creditors to an equality, yet it is hard where a man has a debt 
due from a bankrupt, and has at the fame time goods of a 
bankrupt in his hands, which cannot be got from him without 
the affiftance of law or equity, that the aflignees fhould take 
them from him without fatisfying the whole debt. 

And therefore the claufe in the a£k of parliament of the ^ It c ^J bH * 
5 Geo. 2. relating to mutual credit, has received a very liberal w hi c h thccUufc 
conftruftion, and there have been many cafes which that claufe in the aa of par- 
has been extended to where an aftion of account would not lie, i!*™ en * ? U:i "* 

. . ,. .... . ' to mutual credit 

nor could this court upon a bill decree an account. has been extend. 

The queftion then will be, whether there is any fpecifick lien *<j, where nei- 
on thofe goods in the petitioner's* hands, either by exprefs con- ac"unt wouW° f 
trad, or from the nature of the dealing ; if not, whether there lie, nor could 
U any mutual credit and account. **"■ cywt de ' 

To be fure packers may retain goods till they aTe paid the 
price and labour of packing, and fo other trades may retain in 
I Ac Eke manner, therefore thefe goods were in the petitioner's 
hands in the nature of a pledge for fome part of his debt, that is, 
'&e price of the packing *, and what right has a court of equity to 
&7, that if he has another debt due to him from the fame perfon, 
that the goods fhall be taken from him without having the whole 
paid? 

In the cafe of Demainbray v. Metcalfe^ before Lord Cowper, 
ifirn. 691. he faid, he looked upon it as an account current 
letween the pawner and pawnee *, the prefent cafe I think is 
r, for here the goods are undoubtedly a pledge in the pe- 
's hands for part of his debt. 
is tcqr hard to fay mutual credit fliould be confined to Mutual wed'n it 
iary demands, and that if a man has goods in his hands, j£ C un?ary de-** 
to a debtor of his, which cannot be got from him mands only, but 

if a man hit 
foods in hii hands belonging to a debtor, it fhall be confidered as fveh (1). 

(0 Sft JFrtmch v. f<mr, 1 Cooke's B. Laws, 577. Smith v. Hodgfm* 



**9 N 05anteupt. 

**$**** without an acHon at law, or bill in equity, tl 

psi+i. not be confidered as mutual credit ; and Lord Coiu 

plainly favours that conftru&ion, for he looke 

jewels pawned, and notes given, as an account 

tween them. 

And here, though if there had been no bank 
a&ion for thefe goods, the debt could not have 
yet as the claufe of mutual credit has been exten 
F *qo ] lt ma y comc w »*liin that rule, efpeciallyas here i 
■ between them, on the one fide 19/. due for pacl 

the other fide much about die fame fum due to tl 
eftate for wine (1). 

(O This cafe fcemi to have been de- ftlkax, and Gardiner v. C 

trrmined upon evidence, that it was ufual 494.. Green v. Farmer, < 

for packers to lend money to clothiers, But fetus where goods aj 

and the cloths to be a pledge not only a tradefman or manufaclui 

for the work done in packing, but for cular purpofe, as corn to 2 

the loan of money likewife, (poll. 237. ground, or cloih to be dy 

4 Burr. 2217.); according to which etc.; for thefe have only 

yfage the packer was in the nature of a upon the goods for the pri< 

fatlor, and as fuch in titled to a lien upon dying, lie. Ex parte Octet, 

the goods not only for incidental charges, Green v. Farmer, 4 Burr. 2 

bat as an item of mutual account for the Rep. 651. S. G See alf< 

general balance due to him. Ex parte drtws, 1 Cooke's B. Laws. 
Dumas 9 poft. 234. note 1. Krutzcr v. 

£~«*r»5*s mim y# Hi(Jem 

Vide under the DiviJ$on> Rule as to Drawers and Irtdi 
of Exchange. 

J*t& 16m, Ex parte Charles Prefcot: In the Matter of Pre/cot 

and Brother to the Petitioner, 

Cafe 1 26. / T* ^ ^ petitioner a creditor for two debts, c 

The petitioner' '* an< * ^ e ^^ °^ ,0 ' # anc * at * C ^ amC timC a 
a creditor of the bond given to the bankrupt for 340/. payable on 
bankrupt for March 17C6, with lawful intereft, applies to the cc 
i^daddbtorto" may be at liberty to let off his demand of no/, as 
him upon bond go againft the intereft and principal due on die bom 
^'tteaxTof" 6 ob % ei1 to P rovc ,lis debt un <kr the commiflTon, am 
Marrb!T 7 ^ f dend only upon it. 

with UwfU in- 

tercftj applies that he may frt off hit demand of 1 to /. againft the principal and interei 
as far as it will go, and not be obliged co prove his debt under the commifiion, and 
»pon it only. Though thL is nor in it.i&ncfs a mutual debt, yet it is a mutual cred 
rope gives a credit to chc petitioner in consideration of the bond, though payable at a 
lie gives the credit for the debt the bankrupt owes him upon fimple contract, and the 
«<jui;y of the 5 Geo. a. An account directed to be taken between the petitioner and tb 
the balance only to be paid to the aAignces. 

Lord Chance/lor : No cafe has been cited, to me, t 
fide or the other, and therefore I mull make a preced 
tcrmine it on the rules of equity. 



TSanferupt 

The time of payment on the bond is not yet come, and there- 
fore the condition of it not broken, as there is no debt that can 
\k recovered upon it till the 4th of March 1 756. 

The petitioner infills he is not to be compelled to come in as 
other creditors to prove the debt of no/, as he pays imereft 
now upon the bond, and in 1756 mull pay the principal, but 
that he has a right to fet off*, and therefore prays the no/, may 
be dedu&ed out of the principal and intereft of the bond, and 
founds tliis right on the claufe in the 5 Geo. 2. relating to mu- 
tual credit. 

The words of that claufe are, u That where it (hall appear to 
"thecommiffioners, that there hath been mutual credit given 
"by the bankrupt, and any other perfon, or mutual debts be- 
" tween the bankrupt and any other peifon, at any time before 
u fuch perfon became a bankrupt, the commiflioners, or the at* 
ft fignees of fuch bankrupt's eftate, (hall (late the account be- 
M tween them, and one debt may be fet. againft another ; and 
11 what (hall appear to be due on either (ide, on the balance of 
"fuch account, and on fetting fuch debts againft one an- 
" other, and no more, (hall be claime4 or paid on either fide 
"rcfpeaively." 

It has been objected by the counfel againft the petitioner, that 
this is not a cafe of mutual debts, becaufe the aft means debts 
aftually due ; and here one debt is due, and the Other not due, 
and therefore they arc not properly mutual debts. 

Before the making of this aft, if a perfon was a creditor, he 
*as obliged to prove his debt under the commiffion, and receive 
perhaps a dividend only of is. 6d. in the pound from tftebank* 
nipt's eftate, and at the fame time pay the whole to the aflignee 
of what he owed to the bankrupt ; to remedy this very great in- 
convenience and hardfhip; the a£l was made. 

It is very true, as Mr. Clarke fays, that the 5th of Geo. 2. be- 
fog a pofterior aft, mud be conllrued with a reference to the 
7th of Geo. I. cap. 31. and both ads confidered together. 

Taking it upon this foundation, what will be the refult? 

Sappofe for inftance there had been a bond from the bankrupt 
to A. payable at a future day, and a debt owing from A. on 
. Smpfe contrail to the bankrupt for a lefs fum, the account be-- 
tween A. and the bankrupt (hall firft of all be ftatcd, and one 
tox fet againft the other, and A. flinll be intitled to a propor- 
tionable dividend of fuch bankrupt's eftate, pro rata with the 
other creditors, €( difcounting the bond payable at a future time, 
11 after the rate of 5 per cent, for what he (hall fo receive, to be 
tt computed from the aftual payment thereof, to the time fuch 
•debt (hould or would have become payable in and by fuch 
"bond/ 9 Thefe are the words at the conclufion of the claufe in 
\ Ac ftatute of the 7th of Geo. I. relating to creditors whofe debts 
tot payable at a future day. 

Confider it then the other way, where A. is a debtor to the 
knkrupt by bond payable at a future day, and a creditor upon 
.JUb eftate bv fimple contraft for a lefs fum, would it be juft and 
tkat he (hould be obliged to prove his debt under the 

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•Banttupfc 23* 

lerchants in London, amounting in the whole to the fum of ** P"** 
t 4 6l. us. ud. ^ D ™ Ai - 

Jullian the father and his fon, in a letter to the petitioners, 
cknowlcdge the receipt of the feveral bills, and exprefsly pro- 
nifeto give the petitioners credit in their new account G. 

On the 25 th of February laft Jullian the father died* 

On the 27 th of February, the very day the creditors of the 
Jullian/ met, a refolution had been taken by Peter the fon to 
ftop payment, and which he did accordingly. The next day 
he ventured to get two of thefe remittances difcounted, one 
for 300/. and another for 266/. lis. ud. making together 
566/. ii/. lid. 

On the 20th of March a commiflion of bankruptcy was award- 
ed, and iflued againft Peter Jullian ; and James Godin and 
Francis Duval of London, merchants, were chofen aflignees. 

The petitioners infill the faid bills were not liable to be ap- 
plied or converted by John Jullian and his fon to any other ufe, r 2 ^ 1 
or on any other account, than as the petitioners had directed and 
charged ; that the feveral bills now remain in the hands of the 
aflignees, or if the bills or any part have been applied to any other 
ufe, fuch proceeding was not only a grofs fraud, but absolutely 
illegal. 

They pray therefore that the aflignees may be ordered to de- 
Srer to the petitioners the feveral bills, amounting together to 
the fum of 1146/. nx. lid. and in cafe it (hall appear, that 
any of the "bills have been received either by the faid Jullian and 
kis fon before the father's death, or by Peter the fon fince his 
tuber's death, or by the aflignees fince Peter's bankruptcy, that 
in fuch cafe the aflignees may pay to the petitioners the full value 
of fuch bills. 

The counfel for the petitioners infilled the bills ought to be 
ippropriated to the particular purpofe mentioned in the letter 
Of the petitioners to the Jullians, and that while the bills are in 
hdng, they belong to the petitioners, and they have a fpecifick 
Ren upon them wherever they are ; but as to thofe which were 
difcounted, as money has no ear mark, they waived their claim 
in that refped. 

The counfel for the aflignees relied on the bankrupt's affida- 
vit, in which he denied that Dumas and Company did acquaint 
him or his father, by any letter whatfoever, that thefc bills 
*cre intended for the proper and peculiar account of Dumas 
and Company's houfe at Cadiz, and infilled that all bills are 
COnfidered as calh, and that merchants have credit for them as 
fach, and that the ufual and common courfe of trade and bufi- 
ki amongft merchants is, that whenever they receive any bills 
fom their correfpondents abroad, the 'fame are blended with 
Arir general ftock, fo as to anfwer their daily payments, and 
A* it appears by the bankrupt's affidavit, "that he and his father 
fctquently paid feveral fums to the order of one correfpondent in 
ttj, or in money received for the difcount of bills of other cor- 
nts ; and therefore thefe bills ought to be confidcred as 
] credit of the Jullians, and mud be brought into the 

ntKOIMt. 

0^4 N.B. 



*33 bankrupt. 

Ex para tf m s. The bankrupt admitted the receipt of the fevers 

and that the petitioners by the letter that inciofed fu 

de fired they might be carried to a new account to be i 

<?. and that fincc his father's death he (fid open fuch a 

G: and placed the fame thereto accordingly. 

Lord Chancellor : The prefent is a very plain cafe to g 

petitioners a title to thofe bills which remain in fpecie 

gotiated. 

It has been truly faid this is a que (Hon of great confe 

to the trade of the city of London ; but then it is of a 

greater weight in another refpeft, that the property of ox 

may not be diflipated to anfwer the debts of other men. 

The rule of The principal view I do admit under all commiflions o: 

comm'Siontof ™pts is, to put creditors as near as may be on a level, b 

bankruptcy ex- muft be done only with regard to the bankrupt's own efta 

tendsonly tohii #jf t hc matters in queftion are not relative to his eftate in 

own cftatc. and . - . ., .* . . ... . - . . 

not to matters equity, efpeciiuly in equity, the court will be of opinion t 
which are not perfons who have either the legal interefl in any tiling, or ; 
reUuve to his • a£Uon, which is an equitable intereft, (hall be intitle< 

eltate in law or , ,f ' • i r r n n • r»i • » r 

equity. and aflignees in thefe cafes mult itand exactly in the iam< 

[ *234 ] tion with the bankrupt himfelf, or otherwife commiffi 

bankruptcy would be an intolerable grievance. 

Where goods Suppofe the petitioners had configned over goods to Ju 

configncd to a ^tix faaor, and he had fold them, and turned them in 

factor continue _ • • • « ■ % « • * 

in fpecie, and ney, the principal then could only have come in as a 
found in his xz\ creditor under the commiflion 5 but if the goods ha 
t j roe , £ t Wf e tinued in fpecie, and had been found in Jullian's hands 
bankruptcy, the time of his bankruptcy, it would have been otherwife, j 
principal *• *«- been f determined in feveral cafes; and even contrary 
andnottheTre- exprefs words of the ftatute of the 21 Jac. 1. fa&oi 
ditors at Urge, been excepted out of it for the fake of trade and m< 

dize (1). 
Wh?re goods fo The court of Common Pleas in a cafe, the name of ^ 
foid fi *and the ^° not rcmcm ^ )cr > determined that notwithftanding the g 
ftaors took configned were fold, yet as the xaftor took notes inftead 
ootrsinfteadof nC y for them, that the principal was in titled to the not< 
rrLdpaiitdded not thc creditors at large. 
%o the natci. The letter G. appears to be the initial letter of the fii 

ner*s name at the houfe at Cadiz. 

Thefe bills I confider as appropriated to a particul 

pofe (2), and intended to anfwer and reimburfe the 

what they fhould pay on this fpecial account, for by be 

dorfed they could negotiate and difcount them ; 580/. apj 

be the amount of the bills left in fpecie. 
Upon all thefe circumitances it would be the hardeft t 

the world to fay thefe bills fhould go to the creditors 1 

(l) Fid* Godfrey v. Fum, 3 P. W. 186. (z) Scats if the bills are fentdl 

fya!l v. Rolle, ante 174. Mace v. Ca- ral account between thc corrcf 

dcU % Cowp. 233. Krutzer v. Wilcox, and merchant, Ex parte Flour** 

and Gardiner v. Coleman, I Burr. 494. Ambler 297. 
6oe tx parte Deeze, ante 228. note. 



'Bankrupt *j4 

"C on the*whole I am clearly of opinion that the fpc- ** P*** 
amounting to 580/. mud be delivered up by the UWAI - 
' Jullian to the petitioners Duma: and Company, or 
bus as they impower to receive them, and order ac- 

)• 

rty Emery, 2 Vef 67 f. En. Lam l ert, I Cooke's B. Laws, 420. Ex 
Arab. 297. D*Aqxtila v. parte date, ibid. 422. 

Ex parte Shank and Others, >*»ji^thei©ai t 

*7S± 

1 who had repaired a (hip belonging to a bankrupt Cafe ia3* 
:d he had a fpecifick lien on the ihip for the re* A*pe r &n who 
was not obliged to prove it as a debt under the rc P*»» a flup faa« 

* nofpecific lien, 

» 9 m if delivered to 

ed after the (hip had been fo repaired, the workman ^ ba kruptjlf 
to the bankrupt who employed him, and therefore w J*' ,red j n a ?7 
p/wr was or opinion he had no pretence, umici the oik inon* voy- 

of the realm, to retain till he is paid, becaufe it is a * c » lf W0U,J 
Dffeffion •, and though the law of lUland gives a per- * J J^f nothfr " 
>airs a houfe or fliip a fpecifick lien, there is no (uch J%£Lf S%y&^ 
land) and confequently he mud account to the ai- / ^c^Zt+^/cS* 

101/. the money arifing from the f.dc of this iLip, c ' /? jf' 
mitted to be in his hands, and mufl come under the ^ 

for the debt due to him for jrepairs, and ordered ac- 

')• 

lip had been repaired 'in a foreign port, while outi 

age, it would have been otherwifc ; but being repair -ft 

e, it falls exactly within the cafe of Stevens v. S;/f,\£? 

d Talbot. Vide this cafe dated in the caufe of Ryall 

Jan. 27, 1749- (*) (*)• (,> Ante 161. 

fuftin v. Ballam, 1 Salk. 34. 636. Farmer v. Davits, 1 Dura., and 

cter, 1 Stra. 695. Watkin- E til 108. 

-diflon, 2 P. Wms. 367. Bux- (2) Ufter v. Baxter, 1 Stra. 69 J. 

I Vez. 154. Wukinsv. Car- Jfaskh/on v RamarAifion, 2 P. W. 367. 

u g« 97* R' c b v * £<*> Cowp. Samjrm v. Bragwgton, 1 Vez 443. 

Oclenden 5 in the Matter of /Z<,&v7 Matthews^ a -^^ chexith, 

\ petition came on upon the Saturday before, and ^/frs,*<-* 

adjourned till to day for further confideration. l*dlz 129. ^ 

datheivj, a flour faftor in 1752, employed the pe- In X^roHafr v^**^ 
his miller, who had confideiubk dealings with Ma- Z^^-^^^ 
finding of corn for him, on which account he was ed'i^ainft /»'*- ,^/£- 

tbcwi, at the j-^- 

e a bankrupt indebted to the petitioner in 286 /. 7 1. 10J. for grinding ot corn, and he ~ 1 

lody 36 loads and 3 bu/hcls of wheat belonging 10 the bankrupt, part ground and p ire 
I4t> a great number of facks. 16/. 5*. was due to the petitioner for grinding the 
la ia his hands at the time Matbtwi became a bankrupt:. The wheat Toil by the af- 
•ement between them and petitioner, without prejuJice ti his claim > he now applies 
iMlt<tebt out of the money arifing by the fab. Ltrd CbjnctUv of opinion, the petition- 
afdtUeo upon the coin aadf-ckt, but only fr* tamf u u du-r tor grinding the cora in 

f **-*.*£. 653. 

gencxaWj 




335 ^Bankrupt. 

F- fam generally indebted to the petitioner in a large fum of monfj 
ckindif. w j io a j wa y S j^ j n hjg hands corn, meal, and facks oi Maihrw. 
fometimes more, fometimes lefs, but for the moft part fufficien 
fo anfwer the fum due to the petitioner \ and for this reafon th 
petitioner gave Mathews a much greater credit than he woul 
otlierwife have done, as he always apprehended the corn, meal 
and facks, which he had in his hands, to be a fecurity forth 
debt due from Mathews. 

In March laft a commiflion of bankruptcy iflued againft Ma 
thewsy and being declared a bankrupt, Stephen Wear^ and thrc 
other perfons, were chofen aflignees. 

At the time Mathews became a bankrupt, he was indebted t 
the petitioner in 286/. 7 /. 10 d. for the grinding of corn, fo 
which he gave two promiflbry notes of 100/. each, and whid 
became due before the bankruptcy, and the petitioner at tb 
fame time had in his cuftody 36 loads and 3 bufliels of whea 
belonging to the bankrupt, which was fent to be ground, par 
whereof was then ground into flour, and the remainder wa 
then grinding, befides a very great number of facks, and whid 
the. petitioner depended upon having as a fecurity for his debt. 

There was likewife due to the petitioner 16/. 5/. for grindiflj 
of corn, whicii was in his hands at the time Mathews becami 
bankrupt, making in the whole 302 /. 12/. 10 d. 

The petitioner applied to the aflignees to redeem the com 
&c. and pay him the 302 /. 12 J. 10 d. which they refufed, but 
corn b'.'ing a perifhable commodity, and an immediate ncceffit] 
of felling upon that account ; the petitioner had delivered al 
f 2 3^ J the wheat and facks to the aflignees to be fold without prcjudiri 
to his demand of his whole debt, or to the afEgnees* property it 
the goods, who have agreed, in cafe it fhall be determined thai 
the wheat, fate, was a fecurity to the petitioner for his debt, tt 
pay the whole. ■ 

Therefore the petitioner prays, that out of the money arifiai 
by the fale of the corn, fcfr. he may be paid his whole debt d 
302/. 12/. 10 d. 

Lord Chancellor : In determining of this cafe, I am equally 
afraid of altering the confequences and effects of the courfe of 
dealings in trade, or of overturning the general rule in the 
courfe of bankruptcies. 

It lies upon the petitioner to (hewhc has any lien upon lift 
corn, &c. in his hands ; and as to the fpecifick lien which b(( 
claims, I do not fee there is a fufficient reafon to confider 2 
as fuch. 

In this cafe no evidence has been produced of any .co 
that die debt which was owing to the petitioner mould be a 1 
on the corn, &c. 

Nor is there any evidence, that there is any general ( 
with refpe& to millers that it (hould be a lien. 

There is then no fpecifick lien, but what arifes from 'tl 
kind of bailment at law, proceeding from a delivery of goods flj 
a particular purpofe, as in the cafe of a horfc (lauding * 




VattkrapY. 235 

bblc of an inn-keeper, or cloth in the hands of a taylor, who E * t art * 
avc each of them a fpecial property. Ockekoxn. 

Might not Mathews in this cafe before his bankruptcy have 
lade a tender of what was due for grinding the corn, and if 
Ir. Ochenden the petitioner had refufed to deliver the corn, l$c. 
)uld not Mathews have brought an a&ion of trover for it, and 
1 that cafe would the defendant have been allowed to have 
leaded a lien for any other debt, than what was actually due for 
rinding corn ? 

The cafe of Demainday v. Metcalfe^ Prec. in Chan. 419. was a whereof, bor- 
imborrrowed firft on the pawn of jewels, and afterwards three rows afumof 
lore feveral fums borrowed, for each of which the pawner gave ww^of jewdi 
is note, without taking notice of the jewels; it was determined and rurtherfums 
ut the executors of the borrower mould not redeem the jewels, *( ccrwar< |s j»p°» 
ithout paying the money due on the notes : there it muft have «ecutor of A. 
een prefumed the ground and foundation of the pawnee's lend- &aii not redeem 
ig the money, was his having a pledge in his hands, and there |£f j£„ t cl ^J - in 
\ no pretence to fay, it would have been a lien, if the money the money due 
ad been lent before the delivery of the goods, and it therefore on *** not€S * 
mued upon it's being a fubfequent transaction. 

The cafe of Downturn v. Mathews and others, Prec. In Chan. Tlw cafe **- 
j&o. appears to be a tranfaction between a clothier and a dyer, a nd dyers° ani* 
ind there was evidence that they always made up their accounts clothiers and 
If giving mutual credit, the dyer on one hand for work done, Jfjj!""*? 
lid on the other hand, the clothier for his cloth. thc^rcfentTit. 

being always 
ftAomary for them to make up their accounts by giving mutual credit; the dyer for iiiihincc, on one 
■nifcr work done, and the clothier for hi* cloth. 

In the petition ex parte Deeze (a) the 8th of June 1 748, be- (') AtteziS. 
fete me there was evidence, that it is ufual for packers to lend C 2 37 J 
fconey to clothiers, and the cloths to be a pledge not only for the 
•ork done in packing, but for the loan of money likewife (1). 

Then it muft come to the qucfiion upon the claufe in the a£b 
'parliament relating to mutual credit \ and I ownl am ex- 
tonely doubtful as to that. 

Here is a quantity of corn delivered from time to time by a 
teal-man or corh-faclor, to a milleT the petitioner. 

The law gives a particular lien pro tanto y as is due to the 
tiller for grinding the corn, and no contract appears in this 
*fc to extend it further, and I muft prefumc therefore it was 
lot intended to be carried further. 

The claufe in the act of the 5 Geo. 2. relating to mutual ere- Court? of equity 
Ik, has been carried to be fure further, and rightfully, than a g> no further 

7^ - * iti 1 1 r than courts of 

Mqe matter of account, but I do not know that a court of i aw ,i n thecafei 
Mwty has gone further than the courts of law in the cafes of a of a fet-off, 

L»_flT/«i upon the aft 

^ri 2 '^ r t . , , t r r i rcla:ing to mu, 

Thefe cafes go further indeed than cafes of account ; but can tuii credit. 
Nycafe be put, where in die prefent inftancc there could have 
fceia fet-off. 



? 



* • (1) See 4 Burr. 22 17. (2) Attic 126. Bilk* v. Hyde. 

i*Y # Sufpofc 



?37 f 35at?ferupt. 

tx psrtt Suppofc the corn-faflor had tendred the money for grinding 

the corn, and Mr. Ockenden the petitioner had refufed to deliver 
it, and the bankrupt had thereupon brought an action of tro- 
ver, could Ockenden have fet off an antecedent debt ? I am clear- 
ly of opinion he could not, and would have had only an allow- 
ance pro tart fa, as was due for grinding the corn. 

Suppofc vice verfa an aftion had been brought by Ockenden 
ogainft the bankrupt on account of the debt dac for money lent 
to Matthews, could the bankrupt have fet-off the value of the 
corn in the hands of Ockenden ? I think clearly not. 

Thcfe are my grounds, and I confefs I am very apprchenfire 
of breaking in upon die common courfe of dealing, and the rule 
of proceeding in commiilions of bankruptcy. 

Adjourned at the requeft of the petitioner's counfel, to tie 
next day of petitions, being an affair of great confequence to 
trade and creditors in general (i)« 

(i) So Greenv. Firmer, ^Bvrr. 2214. Deezi t ante 228. and note. 
1 Black. 651- S. C. See alfo Ex parte 

r ,,o i (Fp) Whether during hit Time of Privilege, kt may be taken if 
L J J hit Bail. 

fla^*..*., £*/**,. Gibbons. 

1747* 

Cafe 1 70. T^ HIS was a petition prefented by the bankrupt againft one 

Tcfclt a flierifTi A *V ae a A^"^ 5 officer, who was bail for the bankrupt » 

officer, and bail an a&iou, for taking him away during the time of his cxamj- 

tor the petition- na tion before the commiffioners on the forty -fecond day, an4 

uke!himduw>g furrendring him in difcharge of his bail, and keeping hjm '* 

the time of his cuflody ever fincc, praying that he may be difcharged out fll 

l^fw'Sto cu(lod y> and that -*¥'' mAV bc cenfured for his contempt of 

him in difcharge the COUrt. 

or his bail : he / 

p. ays to be difcharged out of cuftody, and that TifeU may be cenfured far a contempt of the court. I«Wj 
CbAnctUtr inclined to think, tha: the bail** taking the principal coming to a court of jufticc to be «rfj 
mined, has never been determined to be a con temp; of the court, provided the) bring him to be examie^ 
by that court, and therefore difmifled the petition, but without prejudice to the bankrupt's jpp&aM 
co the court of King 4 * Bench. The taking of a bankrupt by his bail, is not a con craven 60 n of the % G*>m 
f >r the a& provides only agiinft arrefii by crWu*rs t and bail are no creditors till damnified, and tfcrdM 
n Jt within the deicription . J 

Lord Chancellor : This is a queflion of very great confequentf^ 
but merely a queiiion of law, Whether Fe/cic could bw^UT 
take the bankrupt, notwithstanding the ftatute of the 5 Gin. j 

It is not .abfolutely neceflary for me to determine it, 
it may come in queftion in another place. But I am of < 
the taking of the bankrupt by die bail is not a contravention 1 
the aci of parliament. 

The words of the fifth claufe in the a£t are, u the UatiW 
" (hall be free from all arreits, reftraints or imprifonmratt^ 
** bis creditors, in coming to furrtnder, and from the 
" furrender of fucb bankrupt to the faid commiffioners, for a* 



daring the faid forty-two days, or fuch further time as (hall £***"* 

i* allowed to fuch bankrupt for finifhing his examination. !»»«*»• 

The a£k provides again ft arreft by creditors. 

Bail are no creditors till damnified, and therefore are not 

thin the defcription. 

'Ihe fabfequent words of the claufe are, " and in cafe fuch 

bankrupt (hall be arretted for debt, or on any efcape warrant, 

coming co furrender himfelf to thefaid commi (Turners or after 

his furrender, (hall be fo arretted within the time before 

mentioned, that then on producing fuch fummons or notice 

under the hands of the commiffioners, to the officer who (hall 

arreft him, and making it appear to fuch officer, that fuch 

notice or fummons is figned by the faid commiifioners, or p -i 

fuch affignee or afiignees, and giving fuch officer a copy ** 

thereof, ihall be immediately discharged." 

It plainly appears, through the whole claufe, to be confined 
) an arrelt, reftraint, or imprifonment by bis creditors* 

Every perfon that is arretted in the court of King's Bench is j! *' Un k rr i e 
y bill of Aftddlefex, or Latitat, which recites the b'll of Mid- b*ilareS!rg'i»>i! 
ie/ex t and the bail-piece is, fuch a one defendant traditur in enofche H n .. 
d&umfupercepi corpus, &c. (naming the bail, their additions, ^\™j**'$ y 
md places of abode,) fo that in the conftant language of that hw may *m ft 
:oart, the bail are his gaolers, and it is upon this notion the blDlona5i " e * 
ail have an authority to take the principal, and he may he ar- S liberty ^iy 
wiled on a Sunday ; for as he is only at liberty by the ptrmiflion bytheiiutui- 
lod indulgence of the bail, they may take him up at any time. **!J ce of ^ 

Therefore to fay, that an aft of parliament (hall prevent a 
perfon, who has been fo kind as to give the principal his litarty, 
faa taking him up in difcharge of himfelf, would be very hard, 
specially ar there is no fort of danger here to the bankrupt, of 
kii being a felon, as the commiflioners may examine him in 
pol, and confequently it in no fort can be faid to be in contra- 
fiction to the ad of parliament. 

But Mr. Attorney General fays, it is contrary to a knovrn 
tak of law, That all who are fummoned to appear before per-. 
fans a&ing in a judicial capacity, fhall have a privilege to be 
fafc from arrefts eundo, ft redeundo. 

I do not know thai the bail's taking the principal coming to 
I court of juftice to be examined as a witnets, has ever been 
ittermined as a contempt of the court, provided they bring him 
to be examined by that court. 

But I will not be undcrilood to be bound by this opinion, or 
Id have it cited in another place, which is the only proper place, 
the court of King's Bench, where he is furren tired, and it is 
^* court only that can difcharge the procefs: for I cannot dif- 
j&Vge the procefs of a court of law in a fummary way; how- 
Hcr 9 I clearly think I oujht not to puniih Fefcit for a contempt 
h* doubtful cafe, and efyccially where the man was in thofe 
gftluMi drciunltanoes of paying the debt, if lie had not furren* 
jWhb principal 

£ • Therefore 



240 'Bankrupt. 

Ex parte Therefore let the petition be difmiffed, but without prejudice 

to any application the bankrupt may be adviied to make to the 
court of King's Bench. 

May the 12th, (QoJ Rule as to a Certificate from Commiffioners to a Judee. 
1742. 

Cafe 1 3 r • Ex parte Lingood. 

Ante 196. r ° 

% Eq. Caf. Abr. 

99. s. C. TTPON the 6th of April lad the commiffion MTas fued out 

The PJ^oner yj by Jonathan Eade, who had been formerly a partner with 
tokrupt, and * Lingood, but fufpc£Ung he was not juftly dealt with, he diffoived 
the three fittings the partnership, and brought his bill for ah account. 

▼ertifed, the commiflioners upon the examination of witnefles, in the intermediate time finding thatbi 
was removirg and concealing his effects, fummoncd him to appear before them the next day from (hi 
date of the fumraons, and on his refufing to con.c, certified this f*£ to Mr. Juftice Chappie, who ad- 
mitted him to Newgate, and on the keeper's fending notice thereof to the commiflioners, they broafht 
him before them upon their own wan ant, and, on his refufing to be examined, recommitted him to flew* 
gate j the bankrupt petitioned now to be dif .harged, as being illegally committed. The court of opinion, 
the certificate is purfuant to the powers gi ten to the commiflioners under the ftatutcs of bankruptcy, set 
that where they have full evidence of his intention tofecrete his effects, they may examine himi&tbl 
intermediate time between the declaration of bankruptcy, and the fittingi XGuUdkaU. 

<S" f < ./ After the caufe had been- depending fome time in Chancery 

y. " i /./i' 1 / 4 * 'upon the propofal of Lingood, all matters in difference were re- 
'' / *' A//^ ferred to arbitration, and die fubmiflion to the award was made 

- y/)fS6* rule of court ' 

ysas*'*' * ' " The arbitrators after fifteen months confideration awarded 

9400 /. to be due to Eade on a ballance of accounts, and dircft- 

ed this money to be paid by inftallments, and likewife awarded 

Lingood to deliver fome amber and {hells to Ma. Eade\ bttl 

Lingood not appearing, nor any agent for him, on the day and 

place appointed for the delivery of the amber and (hells, and 

for making one of the payments according to the award, a* 

tachments were made out again ft him into London and Middle- 

fix, for a breach of the award ; and upon his abfcondiog to 

avoid his being arretted under the attachments, a commiffiM 

of bankruptcy was taken out again ft him, and he was declared » 

bankrupt. 

After the three fittings at Guildhall, xiz. the 27th of Jpnl$ 

the 8 th and 2 2d of May, had been advertifed in the Gazette fa 

the bankrupt to furrender, and to difcover his qftate and effect 

the commiilioners in the intermediate time having met, and es* 

amined witnefTcs upon interrogatories, and finding upon fuch Or 

animation, that the bankrupt had been removing and conceal? 

ing his effects, and fraudulently conveying away his real eftat$ 

in order to defraud his creditors, thought proper to fun ' 

him by their meflenger on the 14th of April \ to appear t 

them the next morning ; and it appearing that he had 

ferved with the fummons, and refufed to attend, the COJ 

fioners in purfuance of a claufe in the 5th of the prefent 

certified this fact to Mr. Juftice Chappie > who committed i 

to Newgate, and upon the keeper of Newgate's fending a < 




'Bankrupt. 241 

notice to the commiffioners, that he had Lir.gocd in his cuftody, Expert* 
they immediately fent their own warrant to bring him before Lll,co v>* 
them, and upon his refuting to take the oath in order to his be- 
ing examined, the commiffioners re-committed him to Newgate, 
inrkre he has lain ever fince. 

Upon the 27 th of April y Li //good preferred his petition to 
Lord Chancellory fuggefting that he had been illegally committed 
!o Newgate ; that he was not indebted to Eade the petitioning 
rrcditor, and praying that he might be discharged from his con- 
venient, and that his Lordfhip would "pleafe to dired an iflue 
it law to try whether the petitioner was a bankrupt at or before 
the iffuing of the commiilion of bankruptcy againil him, and that 
ill proceedings on the faid commiflion might be flayed in the 
mean time, and that his Lordfhip would enlarge the time for 
Eniihing his examination for 49 days, over and betides the 42 
mentioned in the Gazette. 

Lord Chancellor : There are three* things which are proper to 
be confidered upon this petition 5 

ifl, Whether the bankrupt has been illegally committed, and 
(kcrtfore ought to be difcharged ? 

%dlj % Whether an iflue fliould be directed to try the bank- 
ruptcy? 

idJj, Whether the petitioning creditor's is a juft and proper 
debt? 

The laft ought to be confidered firft, becaufe if there is no 
foundation for the petitioning creditor's debt, all the proceedings 
uoder the commiflion mud of courfe fall to the ground. 

I think there can be no doubt as to the petitioning creditor's An arbitration 
Winga juft debt, while the award (lands, for the arbitration bond f^^A^*' 
• a debt at law, and binds the parties, until it is fet afide for the parties," till 
ttrraption or partiality, &c. And the bill which has been fct aiidc for cor. 
bought by Lingood for that purpofe, cannot be a foundation to ™£[°* °' d p £' ' 
Upend it; for if it was, a perfon then has nothing more to do alfo a fuffident 
Kit to file fuch a bill, and fruftrate the effed of the award ; and deb: t0 Support 
ftatfore I think the debt is very fufficient to fupport the com- 2^'^* 
tifion. 

The aft of bankruptcy likewife is extremely plain, and attend- The court will 
A with fraudulent circumftances j I have not met with ftronger n ° l fu j£ rff de * 
in any cafe whatever, for Lingood appears to have aded intirely & rt a anTifu? 
by the advice of his attorney Mr, Vaughan, who contrived the «p?n a gm^rai 
thole fcheme of his going away to avoid the attachment of this banket* th* 
Court; and likewife the conveying away and fecreting his elfeds he is not one/ 
» made out very clearly, from the depofitions of feveral perfons b ?twiu leave 
who were examined before the commiffioners ; fo that, in reality, ^ e TtcKpl*\r 
kit are no lefs than two diftind ads of bankruptcy ; the one he thinks proper* 

"* [from his abfeonding, and the other from his fraudulently 

' away his goods ; and therefore there can be no reafon 

die commiflion, or to dired an iflue, as there is 

I-' a general affidavit of the bankrupt, that he is not one, 

is by no means fufficient* for he ought to have given a 

anfwer to the fads charged in die depofitions taken 

before 




*4* TSanfcrupt. 

Ex parte before the commiffioners, and in the affidavits on the othci 

where a p*rfon As to the legality of the commiffioners , certificate to Mr. Juf 
apprehendi he U Chappie, and proceedings upon it, 'Us an entire new queftion, 
^mJStme^t of a »d <J u * te a new ca k > anc * therefore at the firft opening of it I hac 
commiffioners of a great doubt, whether I could properly determine the legalit] 
bAl j Cr wa' is 1 * °f l ' ie comm ' tmcnt » as a habeas corpus might have been fued out 
file out a habeas and have been decided by the Judges of the common law, whid 
<orpus, that the i s the ready way. But I do remember a cafe of John Ward bo 
ttf^detlr^ fore Lord Chancellor Jf/^, not unlike the prefent, where he dc 
mined by the term in ed a commitment by commiffioners of bankrupt to b< 
judges©! the juftifiable, after he had taken fome time to confider of it. 
common aw. j ^j,^ therefore the certificate which has been made in thi 

^Uameuf wf- cale * s P ur f uan ' t0 tnc P ow ers given to commilfioners under th< 
fidercd a bouk- ftatutes of bankruptcy, for by the old a&s, which confident 
rupta* a uimi- him as a c* iminal and fraudulent pcrfon ( l )§ commiffioners "ha< 
miaxoner^miht " ^ power and authority to take by their difcretions fuch or 
s: their dlfcrcOyn " der and direction with the body and bodies of a bankrupt 
Lnprifon him; cc wherefcever he or (he may be had, either in his houfe, fane 
t i^our°o?the law " tuary, or elf where, as well by imprifonment of his or he 
U uken away, « body or bodies, as alfo with all his or her lands, &f*\ andalfi 
yet as to his per- « W1 j 1 j^ or h er money, goods, chattels, wares, merchandizci 

ion, the power or , , . ' o _ . * * 

examining ftiii " and debts whatloevtr." 13 Lhz.ch. 7. 

icmains, and a 

greater puniihment is inflicted if he does not furrendtr, vip. felony without benefit of clergy. 

The rigour of the law indeed as to his perfon is taken away 
and yet the power of examining dill remains ; but though tbf 
feverity of the old a£ts is removed, yet a greater puni foment i 
inflifted for a bankrupt, if he does not furrender ; it is not 
made felony without benefit of clergy, but then he has to th< 
laft day to conform himfelf to this and the other a&s. 

The 5 Geo. 2. appoints three fittings at Guildhall in the fpaoi 

of forty- two days, for particular purpofes; but would it not be \ 

very great ahfurdity, if the bankrupt might make ufe of th< 

forty-two days to imbezil his effects and to quit the kingdom 

and that the commiffioners, though apprized of his intention 

ihould have no power to prevent it, by fummoning him befbn 

them in the intermediate time, and committing him if he refu 

fes to be examined ? 

The judge, upon ^ nas Dcen obje&cd by the petitioner's counfel, that the com 

the bare c.niii- miffioners have made the certificate variant from the fummons 

ca:e or commif- f or t j ie j atter is eeneral for the bankrupt to attend, and th 

fioners that a , r . * , r t i. , , r ... 

bankiuptrefufed certihcate mentions the caufe for which they fummoncd bun 
to attend, tho* namely, to examine him upon an imbezilment of his effe&s. 
<u*mmoni"g f !s ^ ut t ' iere * s n0 we t? nt m tms obje&ion ; for the commiffioa 
not mentionsd, ers were not under any neceffity of mentioning the caufe of fum 
Is obliged to mowtig the bankrupt in their certificate, becaufe the judge, upa 
comnu. t j ie j r j >arc |y cer tifying that he refufed to attend, is obliged I 

commit him. 

( i ) Amu 77. Btxmkj v. GooJm. 



■Bankrupt. 243 

As in this cafe the commiflioners had full evidence of the **}*"• 



Lutooop* 



ankrupt's intention to fecrete his efFe&s, and to make fraudu- 
ent affignments of them, they have done rightly, fvifely, and dif 
reetlj in the method they have taken to prevent it, by fummon- 
ng the bankrupt, and committing him for difobeying their 
ummoiis. 

I do not fay this to encourage commiflioners of bankrupt to 
ife this power wantonly ; but upon fuch circumftances as ap- 
iear in the prefent cafe, I am of opinion it was very properly 
xercifed, and the provifo which immediately follows the cJaufc 
hat relates to the certificate of the commiflioners of bankrupt to 
he judges, &c. in the 5 Geo. 2. makes it extremely clear, that 
he commiflioners at their difcretion may examine a bankrupt in 
he intermediate time, between his being declared a bankrupt and 
he fittings at Guildhall* 

For the words are, " Provided always, that if any fuch per- 
" fon or perfons fo apprehended and taken, (hall, within the 
" time or times allowed by this aft for that purpofe, fubtnit to be 
1( examined^ and in all things conform as if he, fhe, or they had 

* furrendered, as by this aft fuch bankrupt or bankrupts is or 
w are required, that theft fuch perfon fo fubmitting and confor- 
H ming fhall have and receive the benefit of this aft, to all intents 

* and purpofes, as if he, (he, or they, had voluntarily come in 
u and furrendered himfelf, herfelf, or themfelves ; any thing 
11 herein contained to the contrary thereof in any wife notwith- 
" fbnding." 

Bat though I have no doubt as to the conftruftion of this aft 
tf parliament, yet I do not mean to preclude the bankrupt from 
& habeas corpus, which I (hall leave him at full liberty to bring, 
fhe thinks proper. 

His Lordjbip ordered, thatfo much of the petition as prays that the 
**hmpt may be dif charged from his confinement ', and which controverts 
Kr being a bankrupt, be dif miffed \ but the time for the bankrupts 
i^rtnarmg himfelf and difcloftng and difcovering his eftate and effecls 9 
^fou/bing his examination before the commiflioners > he direcled to 
**largedfor the fpace of forty-nine days, to be computed from the 
Mby of May infant. 



(Rr) The Efecl of Acauiefcence under a Commiffion. 

Ex parte Defanthuns. j vm tht *t*, 

Fide under the Divifion, Commiffion fuperfeded. 

hde as to Debts carrying lntereft under a Commiffion of 
Bankruptcy. 



Voi.L 



&44 ' 'Bankrupt 



Ncvembrr the Bromley, and others, Creditors of Sir Stephen £vance t Plaintiffs. 

' " Goodere, furviving Aflignee of Sir Stephen Evance y ? t> r i 
and others, ■ ■ ■ ■'■ y 

Fide under the Divi/toti, Rule as to the Certificate. 

Mgvfl the 3 jth, Ex parte Marlar & al\ 

1746. 

Vide under the Divificn, Rule as to dif counting Notes, 

Afford. Ex parte %oo\c. 

C f 122 §5 "*" an or< * cr ( l atcc * * c Iot ^ day of April 1744, LcrdCian* 
3 J^ cc n or dire&ed that it fliould be referred to Mailer Eldtote? 
On the 10th of t j e w | ut was <j ue to ^f r# Smales, and the reft of die creditors whc 
wm referred 'to a ^d proved their debts under the faid commiflion, and upofi 
Mafter to fettle payment by the bankrupt of what the Mafter fhould report due 
^credltortun- to dicm refpeftively, the commiflion was ordered to be fupcr- 

der the commif- feded. 

and upon payment by the bankrupt the commiflion to be fuperfeded. The bankrupt now offen to p| 
what is reported due, but the creditors infift upon intereft likewife from the date of the M after' ireycH 
The creditors here are equally intitled, as if they were in the common cafe of a reference to a Matter i 
acaufe to ftate what is due for principal and intereft, to be paid intereft from the time of the Mifterf 
repon, when the fums due are liquidated. And the bankrupt ordered to pay in a month according. 

On the 1 6th of March 1744, the Matter certified there** 
. due to the executors of Smales for his debt, and charges undfl 
the commiflion 277/. 1 /. id. £. and to the other creditors fuel 
feveral fums as are dated in the report. 

The prefent petitioner, the bankrupt, offers to pay what is I 
reported due, but the agent for die executor SmaUs y and the id 
of the creditors, refufe to take the 20s. in the pound, unfed 
they have intereft ljkewife from the date of the Matter's report 

N. B. The debt to Striates was a draft given by the banlmqtf 
to him for value received, but not cxprcfled in the body of i 
that it mould carry intereft. 

Lord Chancellor : It is very near ten years ago tince the p» 
nouncing the Jaft order, and the Mailer's report is* ever find 
March 1744. 
[ 245 ] The petitioner's excufe is, that when he made the ofkxi 
paying 20 j. in the pound, he had a revcrfion in a freehold efalj 
only, which is now fallen into pofleflion ; but this will fld 
avail him; becaufe at the time I dire&cd the commiflion to|l 
fuperfeded, I did it altogether upon his offering to pay hnmi 
diately the whole debts to the creditors under the commiflion. " 

Therefore they are equally intitled as if they were in the coil 
mon cafe of a reference to a Mafter in a caufe, to ftate wkrffl 
due for principal and intereft, to be paid intereft from tficfio" 
of the Matter's report when the fums.due are liquidated* 



O&attfcrtipt. 245 

His Lordftrip ordered the petitioner to pay the principal and E*j>*rt$ 
tcrdlin a month accordingly, to all his creditors (I). Room, 

( 1 ) Brvmfly v. Goodere, ante 75. Ex partt Marlar,' ante 151. 
(Tt) Rule as to Principals and their FaBors. 

w and Baxter, Affignees of the Eftate of John \ pi . .- Febman th« 
TMet, a Bankrupt. ' I naintitts. ^ ^ 

iat % Dawfon, Julian and Li Blon, ? 'homos K f . 4 ^T^f ^^^ 
Elder and Younger, and Toilet, \ Pendants. '/JS^J^. 

rHE plaintiffs made the following cafe by their bill: Cafe 133. 
That Toilet in 1 740 configned to Ragueneau and company, where agents 
ding at Leghorn, German ferges amounting to 206 a/. I is* abroad are in div- 
ides the infurance made by Toilet, with directions to the ^^J^JJ • 
tners to fell the goods as loon as they could ; and alfo con- upon being 
ted to them other goods to the value of 1 8 1 /. 14/. 6d. The doubtful of hit 
tiers not being abie to fell all the goods, Toilet gave orders to tlk^mof 
tt them for Italian goods, and the copartners agreed that lading to their 
of the goods mould be difpofed of for thofe of the growth ? wn . order indor - 
taly to half the value of the Italian goods, and the other to no^thfta^ing 
»aid for in money; and afterwards, by letter of the 18th of thefe bills of 
tmbtr 1741, they advifed Toilet thereof, and that they |ading come to 
Id load the goods, which were filks, on board the Prince hand^yetffthe 
vard, andinclofe a bill of lading for 12 bales. Toilet in 1741 agent's partner 
ived the bills of lading indorfed by the faid partners, but in- ^j^^^ 
ed for the ufe of Toilet only. their principal it 

become bank- 
ad defires them to fend the bills of lading, and an order to the captain to deliver the goods to him, 
1 j retain them for himfelf and company again ft the affignees under the commiifion till paid, and 
mt&d so much as the partnership is in advance. 

'olfet, in 1741, borrowed of the defendants Julian and Li j-^u .^^ j 
i, 505/. and by way of fecurity afligned the bills of lading '**f > ^ 

the 12 bales. Toilet being alfo indebted to the other defend- J,^^. ^/tUo~S& 
i the Thomais in feveral fums, for fecuring thereof he afligned / j?^^,.. v-^ ^ 

ices for five bales and three bales, and delivered the fame to 

Thomas's. 

loon after a commiffion cf bankruptcy iffued againft Toilet, 
the plaintiffs were chofen affignees, and received a letter, 
ifted to Toilet from Ragueneau and company, mentioning that [ 246 1 
f bad bought four bales of (ilk more for him, and had given 
payment for it four bales of ferges, and fent him the invoice 
1448 dollars, which they had placed to 7 diet's debt (1). 
Bathe 10th of February, 1 741, Daw/on the captain of the 
tmaid, on board of whofe (hip were the bales of filk, arrived, 
[.djffc goods were configned to Toilet, and were flipped, at the 
memdm tie name of Toilet; the defendants Julian and Le 

t)l*|ht btUt of lading were not fent. Reg. Lib. B. 1743./. 280^ 

R a Bkn> 



a+6 bankrupt. 



Smz v. 

PlIICQT. 



Blon, and the Thoma's (hewed Daw/on the bills of lading, and 
demanded the goods, but he refufed to deliver them, and Prefect 
partner of Ragueneau who lived in I^ondon, on Toilet's being a 
bankrupt, wrote to his partners, defiring them to fend the bills 
of lading that Daw/on had figned and left with them, which they 
fent to him accordingly, and at the fame time fent an order to 
Daw/on to deliver the goods to Pre/cot , ( I ) who fets up a right 
thereto. 

But the plaintiffs infift, that the bills of lading, though made 
to the order of Ragueneau and company, yet being indorfed by thm 
in blank and fent to Toilet, it did, according to the cuftom ol 
merchants, veft the property in Toilet: And further, that it is 
the cuftom of merchants at Leghorn, to fend bills here filled up 
as aforefaid, in order to conceal the perfons' names to whom the 
goods ar* fent, that the publick may not know the perfons in 
England^ with whom fuch houfes deal, or to whom the proper- 
ty belongs. 

That at the inftant the goods were loaded on board the Primi 
Edward, the property vefted in Toilet, who was then in good 
circumftances, and the reafon of the mafter of the (hip's figniqj 
feveral bills of lading, is for fear of lofing one: That it tsdl 
cuftom of merchants to borrow money upon bills of lading 
which have been looked upon as a good fecurity : That Tolletink 
made debtor for the goods in Ragueneau and company f t booUj 
and the delivery to Daw/on was for the ufe of Toilet, whofe tap 
it would have been, if loft in the voyage. ' 

That the defendants Le Blon and the Thomas's, norwithfao* 
ing they have an affignment of the bills from Toilet, yet do adrit 
they were only pledged to them for what was owing on the ftai 
they had lent, and upon payment of that, and the expence of dfc 
infurance, they are willing the goods (hould be delivered to tS 
plaintiffs, who pray by their bill, that the goods brought lit 
Dawjon^ and delivered to Prefect* may be Ibid, and after payitt 
what (hall appear to be due to Le Blon and the Thomas's* tW 
the remainder may be paid to plaintiffs for the benefit of Tdktt 
creditors ; and alfo, that the bills of lading for the four bales h$ 
in the Mermaid, may be delivered to the plaintiffs. v 

The defendant Prefect infilled, that the bills of lading intJ| 
Prince Edward, were not to deliver the goods to Toilet, but to df 
order of Ragueneau and company, and that it is ufual amOH 
merchants, to requh-e the mafttr of the (hip, by which the godl 
[ 247 ] are configned, to fubferibe his name to three parts of every Hi 
of lading, and that there is a claufe in each, that one being » 
compliihed, the other two (hall be void, and fays, on the ddf 
very of the goods, he wrote a receipt for them, by indoricmeji 
of the bills of lading tranfmittcd to hjm, and delivered the torn 
to Dawfon* * .) 

That it is ufual among merchants and faclors at Legb*^ 
when they (hip goods for perfons who have not remitted tMl 
the money before-hand, or for which they draw bills of excfcxng 

( 1 ) Who received the fane.' 



■Bankrupt. 247 

c they run a rifque, not to fill up the bill of lading direcl- Sim v. 
J order of fuch perfon, but to the order of the (nippers P " ,C0T - 
rs; fothat if any accident happen to their principal, be- 
delivery of the goods, they may get back the fame, and 
reimburfe themfelves, and that there was the greater rca- 
uch precaution, in regard Ragucneau and company had, 
e to draw on Toilet for 2757/. 19/. 3*/. for money ad- 
m the barter of the woollen goods for (ilk. 
icing informed Toilet had ftopt payment, and was in dan- 
dling, and that the filk was about to be (hipped by the 
at Leghorn> for the account of Toilet, he refolved to pre- 
filk falling into Toilet's hands till fatisfadion was made, 
eupon wrote by the next pod to his partners, who in 
wer fent the two parts of the bill of lading to be delivered 
'on, and an order for him to deliver the filks to Pre/cot, 
I to the bills of lading, in preference to any other claim, 
lis partners at Leghorn having notice of Toilet's circum- 
:x>n after (hipping the four bales of goods, applied to 
n with whom they made the barter, and prevailed with 
elinquifh the bargain, and they took the ferges back 
id the filks to their own account, and paid for them in 
uid then fent them to the defendant Pre/cot in London, 
Is he hath a right to claim the fame for himfelf and his 

(0. 

anfwer he faith he his willing to fell the filks he received 
m as the court (hall direft, but fubmits that the delivery 
ks to Daw/on, was not a delivery to the ufe of Toilet. 
efendants the pawnees infilled that Ragueneau and com- 
idorfement on die bills of lading was, according to the 
merchants, as much a transfer of all their right to Toilet, 
fame had been fold in an open exchange, and that the 
it aflignment made by Toilet to them, vetted the proper- 
goods in the defendants for repayment of the money 

Chancellor : This is as harfli a demand againft Raguetieau 

5any, as can poflibly come into a court of equity : to 

taking their goods for which they have paid half the 

thout reimbujfing them what they are out of pocket, 

telling them that they (hall come in as creditors, per- 

half a crown in the pound only, under the commiflion 

iptcy againft Toilet y notwithftanding they have the goods 

leir own cuftody, and a fpecifick lien upon them; and 

: t in fuch a cafe, a court of equity will lay hold on any 

"ave this advantage to Pre/cot and the partnership, 

1 the bankrupt had gained any legal property in the filks, r 2 . g -i 

ae by his affigmwnt ', ox pledge or pawn to the defendants 

btc. call it which you will, and if it had not been for 

mftance of then- being fo pledged, the aflignees' bill 

have been difmifled with colls. 

e bill as to thefe four bale* was difmhTed. Reg. Lib. B. *7\yf* 285. 
R3 But 



24? 



•Banltrupt. 



Snu v. But this court is obliged to retain bills for redemption, 1 

Prxscot. cau f c t h e parties have no other way of coming at juftice. 

There are twelve parcels or bales for which bills of lading ai 
fent, and four parcels or bales for .which no bills of lading wer 
fent, and therefore I will deliver the caie from the latter, a 
there can be no pretence that Toilet had a legal property in thefe 
for a promife to fend a bill of lading, if it amounted to any thing 
would be only to be carried into execution in equity. 

As to the twelve bales, they will fall under a different con- 
fide ration, 

Ragueneau and company having advanced a moiety of the 
price for the filks, there can be no queftion, while the goods re- 
mained in their hands, but they were liable to this debt, (a) and 
Toilet could never have compelled them to deliver the goods, 
without paying the money fo advanced, - , 

If a fadlor fells goods for a principal, he may bring an aftioa 
prLcfpal S may a m n ' s own name » or an aftion rnay be brought in the name of 
bring a Aa ion the principal againft the vendee, and the factor may make him- 
felf a witnefs. 

On the other hand; a vendor of goods to a fa&or for the rife 
of his principal, may maintain an atlion again ft the principal fof 
goods fuld, and the fa£tor may be made a witnefs for the vendors 
it has been often fo fettled at Guildhall. 



(a) See ante tx 

parte Dumis 
234, note 1. 

A factor who 



in the name of 

the principal 

again ft the 

vendee, and 

make himfclf 

awitnef>, or a 

ver-dorof good* 

to a factor for 

the ule A hi* principal, may maintain an action again ft the principal, and the factor may be a wtaaefc fi* 

the vendor* 



Therefore while the goods remained in the hands of Rogmt* 
and company, no doubt but they had a lien upon them, for the 
moiety of the price advanced by them ; ai.d he kvho ivorddbavt 
equity, mujl do equity, by reimburfing .them fiift, before he can 
intitle himfelf to the filks, and thus it would have ftobd, if 
there had been no conftgnmettt y which it is infifted makes a con- 
fiderabie alteration, and veilb the property in Toilet. 

I admit the cafe mentioned by the plaintiff's counfel, of in* 
land dealers in England^ that if goods are delivered to a cortnr 
or hiyman to be delivered to A. and the goods are loft by the car- 
rier or hiyman, the conjignee can only bring the a 61 ion, which 
(hews the property to be in him, and it is the fame where goodl 
are delivered to a mailer of a vefiel. 

the action. But 

if before a: livery confignor hears A. it likely to become a bankrupt, or is actually one, and getsth 

goods back again, no action will lie for the aiHgnees of A. becaufe, while in trtinfitu, they may &• 

countermanded. 



If goods are 
delivered to a 
carrier, &c. to 
be delivered to 
A, and are loir, 
by the carrier, 
(Sfc . the cor/i^r.ee 
can jiily brir.g 



[ 249 J 



But fuppofe fuch goods are actually delivered to a carrier fo 
be delivered to A. and while the carrier is upon the road, H» 
before nSu.il delivery to A. by the carrier, the confignor hctn 
A. his cu.*r/!fire is likely to become a bankrupt, or is aftuallyooc, 
and cuiinu-rmands the delivery, and gets them back into M| 
own poffeflion again* I am of opinion that no action of titwrt 

would 



'Bankrupt 249 

would lie for the aflignees of A. becaufe the goods, while they Snei r . 
were in tranfttu^ might be fo countermanded (i). *«cot. 

In the prefent cafe there was no confignment to any par- 
ticular perfon, but bills of lading indorfed in blank to the order 
Df conGgnor, and therefore rather in the nature of an authority 
lhan any thing more. 

Proraiflbry notes and bills of exchange are frequently indorfed Notes or bills ; a - 
n this manner. Pray pay the money to my ufe 3 iii order to pre- l° r f ed * n ? Is 

1 • • /-ii 1 J • r 1 J ' 1 r m \ manner, Fray 

rent their being filled up with iuch an indorsement as panes the pay tbemency to 
nterefi. Mr. Lutwycb, who was an experienced pra&ifer in *y u f c > *' in P. re - 
his court, always did fo in his bills of exchange. J^ up 1 ^" 8 

The queftion of Jaw is, Whether before the aftual delivery fuch an indorfc- 
>f the goods it was not in the power of the confignor to coun- l ? ei ? t as P* fles 
crmand it ? c 1IKcrc 

This mud depend upon the cuftom of merchants, and here 
ndeed there is a contrariety of evidence. For the defendant 
*rtfcot the evidence is, that if agents are in difburfe for the 
pads bought for their principal, they generally make bills of 
iding to their own order, indorfed in blank, especially where 
hey are in doubt of the principal's circum (lances, that they 
nay by this means have it in their power, if they fliould fee 
K$afion, to vary the confignment. 

The evidence for the plaintiff is, that indorfing bills of lad- 
ng in blank docs not retain the property in the confignor, any 
oore than if they were indorfed to die confignee by name, but 
s done only to conceal the amount of the quantity of the goods 
onfigried, it being detrimental to the confignee that it fhould 
c known. 

Bat then the proof on the part of the plaintiff does not fpeak 
5 to the particular circumftanccs, where the agents fufpe£fc 
leir principals to be failing. 

The queftion is, On which fide the evidence is flrongeft ? 

The ftrongeft proofs are certainly on the part of the defend- 
Qts, and there is no occafion to fend it to law on this account. 

Though goods are even delivered to the principal, I could The reafrn th« 
ever fee any fubftantial reafon why the original proprietor, who ^ w g<* & u P°n »n 
ever received a farthing, fliould be obliged to quit all claim to "ff^rf*. 
lem, and come in as a creditor only for a (hilling perhaps in the tor of good*, af- 
ound. unlefs the law goes upon the general credit the bank- ter dcl . iv «y, ** 

, • lt , . ° , * . . . ° A . come in as a crc« 

apt has gained by having them m his cuttody, ditor um i cra 

But while goods remain in the hands of the original pro- commifiion, 
rietor, I fee no reafon why he fliould not be find to have a lien ^j^ t ° h n c a<> 
pon them till he is paid, and rcimburfed what he fo advanced ; general credit a 
nd therefore I am of opinion the defendant Pre/at had a right bank™ t has 
> retain them fo* himfelf and company. fflnlb^* 

It has been objected, that in cafe of any lofs or accident to the cuftody* 
■Mir, it was Toilet's rifque only. 

But fuppofe any damage had happened to thefe goods during 
t voyage, and in tranfitu % there had been an alteration of the 

(l) Birkit v. Jtnkins, cited Cerxp. 296. Ellis v. Hunt, 3 Durn. and Eq/i, 464. 

R 4 cotifgntnent % 



*$o TBanfcrupt 

SHit v. conflgnment, the lofs clearly mud have been borne by the 
fignor. 

Confider this cafe in the next place, under the aft off 
ment of the 5 Geo* 2. upon the claufe of mutual credit, 

" Where it (hall appear to the commiffioners that there 
* c been mutual credit given by the bankrupt and any 
€€ perfon, or mutual debts between the bankrupt and any 
€< perfon, at any time before fuch perfon became bank 
" the commiffioners or the affignees {hall ftate the accoun 
<c tween them, and one debt may be fet again il another, 
" what (hall appear to be* due on either fide on the balan 
€< fuch account, and on fettling fuch debts againfl one ano 
" and no more, (hall be claimed or paid on either fide 
« c peftively." 

The conftruftion on this claufe has always been, that ai 
count mud be taken of their refpeftive demands, and tha 
balance only, if in favour of the bankrupt, (hall be proved u 
the commiflion. 

Suppofe Toilet had never affigned thefe goods and the s 
nees under the commiflion of bankruptcy had brought an a< 
of trover in his right, and by ftriftnefs of law had recov< 
would even the courts of law have fuffered execution to be t 
upon the whole goods ? I think they would not $ and in 
cafe I would have directed that but of the damages, upon a 
of inquiry, there (hould have been dedufted the half price, 
by Ragueneau and company for the filks ; a fortiori this ougl 
be done in a court of equity. 

As to the cafes cited, Wifeman y. Vandeput, 2 Fern, ae 
much ftronger than the prefent. There t€ A. being beyond 
u configns goods to B. then in good circumftances in Lc 
4t but before the (hip fets fail news came that B. was fa 
41 and thereupon A. alters the confignment of the goods, 
4t configns them to the defendant j the court held, that il 
41 could by "any means prevent the goods coming into the h 
4C of B. or his affignees, it is allowable in equity, and B. 01 
41 affignees (hall have no relief in equity." And fo is the 
ex parte Clare, before Lord Chancellor King, for the goods t 
had been aftually delivered. 

If the defendant Pre/cot had got the goods back again by 
means, provided he did not (leal them, I would not blame f 
and lam of opinion, that to take them from him would be 
tremely unequitable. 

In the cafe ex parte Frank, before Lord Talbot the g< 
were aftually delivered, here they are not. 

Upon the whole, from the juftice of the cafe, and from 
evidence on the cuflom of merchants, / declare as to tht u 
hales of ftlk, that the fame being in the pojfeffthn c/'Prefcot and 
partners, the f aid bales or the value ought not to be taken from il 
without fatisfatllon wade them for the money laid out by then 
the lajl mentioned bales and charges incident thereto, and fir t 
, eommifjson thereon. 

Let the Mafler Like an account of the money received by Prcl 
eyfale of the ft Iks, and he and his partners to be charged vrith 



'Banftrupt 051 

tu. Let the fill remaining in fpecie be fold, and the Majler is to s *« «• 

Tingwfh what is the produce of the /ilk comprized in the pledges to ll,MT « 

f fevered pawnees, let the fame be rateably applied to pay what 

ill be due to Prefcot and partners % for the money advanced for the 

? mentioned bales, charges and commiffion, according to thepropor- 

n which the fame bears to the refpeclive values of the particular 

Us off Ik comprized in each of the pledges, and after fuch proportion 

is to be borne out of the value, the refidue to go towards pitying 

lian and Le Blon, for their principal and interefl, and alfo after 

'like deduction to Yrefcotfor the f Iks pledged to /& Thomas's, the 

liue to he applied towards payment of principal and interefl to the 

lotnas's, and if not enough to pay Julian and Le Blon and the 

tomas's, they to come in as creditors under the commiffion in pro- l 

Han \ a* id if any overplus by the fales of the filk, the fame to 

towards paying the cods oiPrtfcot and partners, Julian, Le 

m, and the Thomas's ; if no overplus, the Matter to rate the 

Us between them ; and if any overplus after payment of the 

d debts and cods,- the fame to be paid to the aifignees of the 

nkrupt, for the ufe of the other creditors ( 1 ). 

(1) Reg. Lib. B. 1743* fol. 280. 283. eftablifhcd in its fulled extent, 1//'*. that a 

e lAManow v. Mdfm> 2 Dvrm. and confignor may (lop goods in travfitu % tho' 

y? 63. and Salomons v. Njffen ibid, the confgnee aflign the bills of lading to a 

4. By the judgment of the King's third perfon for a valuable confederation 

mb in the former of thefe cafes the and without notice. Hen. Black. Rep. 

inciples laid down in the above cafe of C B. 357. However the Hoofe of Lords 

tev. Prefcot were much fhaken ; but have fi nee ordered, that a 'venire facias de 

it judgment was afterwards reverted novo fliould be awarded in this cafe, 

the the Exchequer Chamber ■; and the 5 Durn. &T" Eafl, 367. Fide Feartm v. 

icgoing doctrine in Snee v. Prefcot was Bowers, Hen. Black. Rep, 364. 



r ?) Rule as to Annuities wider Commiffions of Bankruptcy* 

tiC'X&m+rf* Augufi the ift, 

fp 4f /ly? - Ex parte Le Compte. 1738- 

SlfJ. Cafe 134. 

N the year 1710, the petitioner gave three hundred pounds c ln f 
for an annuity of 30/. per ann. for her life, payable out 300/. for an an- 
theeftateof the perfon who is now a bankrupt, which he nuity of jo/.^r 
t being able to pay her by reafon of the commiffion, (he ^ibikMto/'* 
titioned to be admitted a creditor for the whole 300 /. a perfon' s eftate 

Lord QHtncellor ordered that it be referred to the commif- r^" ™" * 
Kfcrs to fettle the value of her life, and that ihe be admitted i^s^Com- 
crcditor for fuch valuation, and the arrears of her annuity, miffionersdi- 
bcing unrea bnable (he fhould have the whole 300/. when Jjf^SSS 
t had enjoyed the annuity 1 8 years ( 1 ). jifc, and a to bt 

admitted a cre- 
ditor for fuch valuation and the arrears of her annuity, and not for the whole 300/. 

(0 Ex forte Briton, the next cife. Ex by covenant in a deed, See Fletcher v. 

*UArtis 9 2 Fef 489. Perkins v. Kemp- BathurJ!, 7 Fin. 7 1. pi. 4. CoUereh. Hooke, 

<l Black. 1 106. Pyih v. WJkes, Ztorj. 93. 
tf. 501. Where an annuity is fecured 



«5* j TBattftwpt. 

££*. .ft. ^ -^£J ^ ->^r/, Bclton. 

Cafe 135. 

Seethe prccc- A Bankrupt before the time of his bankruptcy entered 

ding cad. f\^ an agreement to pay an annuity of 20/. a year for 

Where a bank- . ° r . r r J... , . A r .' , 

rupt is under an maintenance of an infant till his age ot fourteen, witn a pei 

agreement to pay on non-payment. 

Sw^mttft C bc aV it B y his filing m onc °f ^ e payments, the penalty bece 

upon ir, and forfeited. 

proved as a debt Th c guardian of the infant who had maintained him, 
jniifion. C C ° m P nes t0 tnc court by petition to have a value fct on this 
nuity, and that the infant may be admitted a creditor for i 
-. _ value. 

*• S 2 J £ or d Chancellor: I am of opinion that a value ought tc 

put upon the annuity, that it Ihould be proved as a dtebt in 
the -commifficn. 

Jmmyto* A - g x p arte Coyfegamc. 

Vide under the Divifion, Where Affignees are liable fo tbtj 
Equity with the Bankrupt* 

(Uu) Rule as to taking out a fecond Commiffion* 
Martb the 20th, Ex parte Proudfoot. 

J743- 

No fcJnd com- f\ ** ^ Jack/on became a bankrupt in 1732, and affigi 

miffion cm be \J where chofen under the commijfion ; upon Jackfon** 1 

taken out before ing forty pounds to defray the cxpences of the commiffion, 

^iscerTiicate 5 a hundred pounds more to be divided among his creditors, 1 

• under the firft* parts in five of them in number and value figned his certific 

lortiii then no- DUt t ] ie commiflioners refufed to fign it; upon which the < 

the Rcond^at ° ditors returned the money to Jackfon again, and notliing furl 

leaft of perfonai was done under that commiffion. 

/ f % ^s^5$a^s J ac kf on ^ ter ^ ,s ^ et ^ U P a different trade, in a different ] 

^c 2*^6- //? /Of the town, and being largely indebted, a fecond commi( 

jjyofj &y**- ^ y^^ is takfcn out againft him in 1736, and affignees were chc 

2 ~ / j?? ?££ u °dcr l U an d his certificate figned and allowecf by LordChanci 

v<"'*"Z m * ' JJcfore the certificate was figned, an advertisement, by orde 

L^»^^ &£<&*6 t h c affignees under the firft commiffion, was put into the G<o 

ffo^./^ 2**?d . for Jackfon's creditors to meet the new affignees, to give tl 

r^ y tflent or dilTent to the certificate, and 39 letters were alfo « 

ir ,r* C^m^p^^^sxi to the creditors under the firft commiffion, to appear at 

*+s?7.f +*r* &y4 meeting. Great numbers of them came, and did all aflen 

the certificate ; and at the fame meeting, by agreement, the i 

of 65 /. was paid to the affignees under the firft commiflioi 

defray the charges thereof, by the affignees of the latter. 

The prefent petition was prefented by two of the credi 
under the firft commiffion to fuperfede the fecond. 

3 ■" J 



•Bankrupt. *s* 

Lord Chancellor : The Jirjl quejlion^ Whether the fecond com- &* t*** 
million can have any effea, and if it ought to be fuperfeded ? ****">*<><>** 

Tbt fecond quefiion, Whether the agreement made in this cafe 
will preclude the court from fuperfeding it ? 

As to the firil quell ion, I am of opinion that if this cafe flood All future per- 
ciear of the agreement, the fecond would hiive iffued irregularly, ^ e J ate '• 
and I (hould without fcruple have fct it afide, and *the certificate affignment, and 
likewifej becaufe when affignees are choferK under a firft com- every new ac- 
miiEon, all the eftate and effeds of the bankrupt are veiled in^fJ^J^. 
Jiem, and he is incapable of carrying on any trade, and all his nce&j but its to • 
iiture perfonal eftate is affccled by the alignment, and every fulure real 
lew acquifition will veil in the afTignees ( 1 ) ; but as to future muft^bcVncw 
eal eitates, there mud be a new bargain and fale. bargain and (ale. 

The bankrupt is incapable of a&ing, and therefore no fecond r *2C3 ] 
ommiifion can betaken out before he has his certificate under 
he firft, for till then nothing can pafs under the fecond, at leaft 
>f perfonal eftate ; confequemly the certificate here can have 
10 operation at all) and I am of opinion it would have been void 
tt law. 

There may have been inftances where fecend commiffions 
bave been taken out, when former commiffions have been de- 
lated, and the affignees pernaps, and the commifiioners dead, 
and this innocently, and v may have paffed Jub fi!entio y but is by no 
means a rule to govern the court. 

The fecond queftion is, Whether the a£ls done by the 
ifEgnees under the commiffion, will give a fan&ion to the 
certificate. 

The fecond commiffion was taken out four years after the firft, 
Ac certificate figned three years ago, and allowed by me two 
fears and three quarters ; nothing clandeftinc appears 5 but-aa 
idvertifement has been put into the Gazette as ufual, for credit- 
its aflenting or diffenting to the certificate, and was plainly in- 
tended that the creditors under the firft commiffion (hould meet 
fccaufe the advertifemeht was put in by the affignees under the. 
5rft, the two affignees under the firft, and feveral of the credit- 
>rsmet accordingly, and accept of 65/. towards the charges of 
the firft commiffion, and the expence of a law-fuit, and in cou- 
Sderation ofthisfum, the affignees of the firft commiffion with- 
tew their petition, which was fil<;d before this meeting for fu- 
perfeding the fecond commiffion. 

I am of opinion therefore, on the circumftances of this cafe, 
4atl cannot fet afide the fecond commiffion, becaufe it would 
I* a great prejudice and injuftice to thofe perfons who have given 
Jack/on credit ever fince his certificate was confirmed, % which is 
bo Ids than two years and three quarters ago. 

U) Ex parte Simp/on, ante 1 38. 1 Cooke 9 s Cvwp* 824. Ex forte HarJcaftU, 1 Cooke's 
'•/.raj, in margin. Martin v. O' Hares, B. Laws 3. 

• Though - 



«53 

PtOCDFOOT. 

Affig oecs may 
advertife* meet- 
ing upon any 
«xtr ordinary 
•ccafon, that 
concerns the 
creditors, aa well 
aa for the parti- 
cular purpofei 
diredtd by the 
a£UolparUa- 
ment. 

C 254] 



TBanteupt. 

Though the a£h of parliament relating to bankrupts d< 
dired the aflignees to advertife a meeting of creditors in re 
to commencing fuits, and for particular purpofes, yet tl 
fignees are very much to be commended for advertising me 
upon any other extraordinary occafion, tliat concerns the c 
ors, becaufe, where they are numerous, there is no way fo 
to collect the whole body together. 

The prefent is a ftrongercafe than ufual, for the affigne 
truftees for all the creditors, and if they have a&ed irapro 
the perfons who prefer this petition, may have their remedy 2| 
them at law, for a breach of truft. 

Upon the whole 9 after all that has been tranfa&ed bet 
the aflignees under the firft, and the creditors under the f< 
commiffion, in relation to the certificate, and after the ban 
has been once more enabled to trade, and gained a new < 
by my confirming his certificate, I fhould do very wrong 
fet afide the fecond commiffion under all diefe circumfta 
and therefore tie petition muft be diffmijed. 



(Ww} Rule as to an open Account wider a Comvujji 

Bankruptcy. 



Deetwhw the 

a»d, 1744. 



Ex parte Simpfon and others. 

Vide under the Divifion, Concerning the Commiffion and Cc 

Jioners, 



(Xx) Rule as to Principal and Surety. 



jiigufl the zd, 
1744. 



Ex parte Crifp. 
Vide under the Dhfijion, Rule as to Partnership. 



Mareb the zfrh, 
J75°« 



Ex parte Williamfon. 
Vide under the Divifion, Ruh> as to the Certificate. 



"Bankrupt. 255 



(Yy) Rule as to the Infolvent Debtors Acl. 

Ex parte Burton. OMr the 

afch, 1744. 

rHE petitioner was a bond creditor for fifteen hundred £ a f c x -- 
pounds of Stevens the bankrupt, who had lived formerly eLS-A 

Holland, and exercifed a trade there, but failed, upon whicn a'JJSer j B * 
ere was a ceffio honor um* Stevens comes afterwards to England, Hdlmd fails 
id had intereft enough to be appointed a governor of a fettle- JjSS^efe w» 
cnt abroad, belonging to the African company, and applies to a ^Jour-got; 
c petitioner to be his fecurity to the company K and to advance He comet to 
m a fum of money to equip him properly in his office : The jJ^JSnte^ 
ititioner agreed to do it, but infilled, as he run a rifque of governor abroadj 
irfciting the fecurity to the company on Stevens's mifbehaviour, he *»!*«• to ^« 
wt the bond (hould comprize the remainder of the old debt, as £uftcurUy«> 
ell as the further fum advanced, which was done accordingly : the company, 
ttvens becomes a bankrupt here, and a commiflion is taken out JJ^^JJ^f 
pinft him ; the commifiioners on the application of Burton to money, who 
c admitted a creditor, for the whole money on the bond, being ag««a » it» 
oubtful whether he was fo intitled, refufed to admit him, and JJJJwrfwTS 
e now petitions for that purpofe. a bond, that 

would comprize 
beitmainder of an old debt due before the cefk Bonorum as wen as the further fum advanced, which waa 
«» accordingly t Steven becomes a bankrupt, and thecommiflionera doubting if Burton ought to be ad- 
»««d a creditor lor the whole money, he now petitions for that purpofe. 

W Chsmcdlorj on the circumitances of the cafe, of opinion he was intitled to he admitted a creditor 
* (he whole money upon his bond. 

Lord Chancellor : The queftion is, Whether this be fuch a 
si jebt as to intitle the petitioner to come in amongft the reft 
f the creditors under the commiflion of bankruptcy againft 
'torn, and that will depend upon another queftion, Whether 
tt compofition in Holland was an abfolute difcharge of the 
ankrupt? and if it was, Whether there is ftill a fufficient con- 
deration for this bond ? for if it was not an abfolute difcharge 
1 Holland, no queftion can arife. 

A man indebted to feveral perfons becomes a bankrupt in 
Idlandy where there are the fame proceedings upon an infol* 
ency, as on a cejfio bonorum among the Romans : The queftion 
<> Whether this proceeding is a difcharge of his effefts, as well 
*of his perfon? for if it was, it would be an abfolute difcharge 
f this debt. 

Upon what appears before me, I do not take it to be the law 
{Holland, that it is an abfolute difcharge of the effefts as well 
s of his perfon : it certainly was not lb even by the law of 
togland, till the ftatute of the 4^5 Ann. which was tempo- 
**7 at firft, and never intended to be a perpetual law, but was 
Jade in confideration of two long wars which had been very 
ctrimental to traders, and rendered them incapable of paying 
*ir creditors ; but I much queftion whether it is fo by the law 
f any other country except England \ the exempting his wear- 
ing 



«5* TBanltupt 

Ex parti J n pr apparel or tools of his trade, was left to the difcretion of tl 
°* TON * Roman Prator^ but was not a binding law upon Jam there, 
it is here. 
Ifadobtor clear- Can it then be doubted, that if the bankrupt gives a ne 
infolvent ȣ*$ fecurity, that his efFefts are all liable i Suppofe by our law ui 
afterward* gives der the infolvent a&s, the debtor delivers up his all, as the ft 
* *£' d * l, ' c £ c tute requires, which is the ccffio bonorum of the Romans, and tl 
•la debt, thi* juftices of peace difcharge his perfon, and he afterwards giv« 
will be binding a bond for the refidue of the old debt; will not this be bindin 
ufoahim. upon him, notwithltanding his being cleared under the u 

folvent act? 
If a bankrupt, In the prefent cafe, I think I might reft here, without goin 
af.er his dif- anv f ur thcr ; but fuppofing, by the law of Holland, his pfrib 
r"ut"fe e cffe C c?i,in * nc l eflfe&s were a&ually difcharged, I am very far from bcin 
l>oincof jufticc clear, whether a bond given, as this was, for the refidue of 
ke ought to fefrt, would not make his effe&s liable to anfwer it; for if 

in iKe good tne . r i • • • /• i e «•--*•• 

deficiency, tho* bankrupt after his difcharge gets future effects, in point c 
no court win juftice and confcicnce he ought to make good the deficiencj 
compc im. t ^ Q , nQ court f e q U j t y or prajtor would do it for the creditor. 
Here is a man wants a fecurity to> the African company, fo 
his exercifing an office of governor in one of their fettlcmcnts 
and likewife a fum of money ; was it not very reafonable for th 
petitioner upon fuch an application to fay, if I do this, you (ha 
give me a bond for the refidue of my old debt, fince I run 
rifque of forfeiting to the company if you mifbehave? 

I am of opinion on fuch a cafe fo circumflanced, that th 

petitioner is intitled to be admitted a creditor for the who! 

money upon his bond, and lay no ftrefs upon the word com 

pofition, in the determination in Holland^ for it was a difpofi 

tion made by the judge, and not a voluntary compolition b; 

the bankrupt. 

Lord Cbance.'Ur If a bankrupt applies to an old creditor, after a difcharge bj 

ieemed to think, certificate, to lend him a new fum of money, to carry on hi 

•fira^ifclu/ e tra( * e » or to become a fecurity for any office ; I am inclined tt 

applies to an old' think, that this ought to be a good confederation for his givinj 

creditor, to lend bond for the remainder of the old debt, and that he ought to fo 

of mon"y W io f c^r- admitted a creditor for the whole debt under the fecond com 

ry on his trade, million; but I will not be bound down by this opinion, thougl 

©rtobehitfe- as j am at pre f ent advifed, I think it would be fo (i). 

cuwtyfor*ny * y ' 

office, this would be a good consideration for his giving bond for the remainder of the old debt, and tk 

whole rruy be proved under a fecond commiflion. 

The law of The next day Lord Chancellor faid, he had looked into T«/«f 

g^ttac^r the Pm&&> undcr thc head of ceflto bonorum, 2 torn. lib. 41 
fciw-Mm follows tit. 3. who lr.ys down the law of Holland exactly as the Dig$ 
thcDigeftjzndh does j n f uc j 1 cafes, that it is no difcharge of efteds, but orir/d 
effcfts C , n bi r ifor°iy the perfon, fome few trifles, as wearing apparel, &c. excqrted 

of the perfon. 

(l) See Spurrct t. Spifler t antt 105, note I. 



^nnltttipk 257 



Ex parte Green. J»z»ft & c 7*ht 

1746. 

rHE petitioner is an afflgnee under a fecond commiflion q^ x '* 
of bankruptcy againft Bonvlcr y who had been difeharged * 

tec before under a former commiflion, afterwards again under difchargcdbVdit 
e infolvent debtors aft, and now by a certificate under a fe- infuivent debt- 
nd commiffion, taken out by his friends for that purpofe. ors a<a> j? c " 

rrn f * .•< rril 111 \ r ■/- coii.es a bank- 

Inc prayer 01 the petition is, lhat the bankrupts certincate ruptafterward* 
ty not be allowed, and infilled by the aflighee's cbuniel, that his certificate 
cording to a claufe in the aft made in the 5 Geo. 2. relating to ""^ % c f 1 ** 
tore effefts, he cannot be difeharged by a certificate, as to his lowed oriyasa 
ate under a commiflion of bankruptcy, if he has been before d >fchargc ot" hi* 
"charged under the ftatute for relief of infolvent debtors. o"m" Vuturrrf- 

That claufe is as follows : tate andtffefl* 

" Provided always, and be it further cnafted, That from and 
after the 24th of June 1732, in cafe any commiflion of bank- 
ruptcy (hall iflue againft any perfon or perfons, who, afier the 
&id 24th of June 1732* (hall have been difeharged by virtue 
of this aft, or fhall have compounded with his creditors^ or 
delivered to them his eftate or effefts, and been releafed by 
them, or been difeharged by any aft for the relief of infolvent 
debtors, after the time aforefaid, that then and in either of 
thefe cafes, the body and bodies only of fuch perfon and per- 
fons conforming as aforefaid, fhall be free fromarreft and im- 
prifonment by virtue of this aft ; but the future eltate and ef- 
fects of every fuch perfon and perfons fhail remain liable to 
his creditors, as before the making of this aft, (the tools of 
trade, the necefiary houfhold goods and furniture, and nccef- 
fary wearing apparel of fuch bankrupt, and his wife and chil- 
dren only excepted), unlefs the eftate of fuch perfon or per- 
fons againft whom fuch commiflion fhall be awarded, fhall 
produce clear, after all charges, fuflicicnt to pay every credit- 
or under the faid commiflion, fifteen {hillings in the pound 
for their refpeftive debts." 

Unlefs (bmc fraud had been {hewn, this man fcems to me to 
intided to his certificate, but of a fpecial nature. 
This aft of parliament has made two provifions, one with re* 
td to the perfon of the bankrupt, the other with regard to hrs 
Me, for before the making the faid aft, neither were difeharged, 
t both were liable. 

Then comes this claufe, and makes a particular kind of dif- 
nge in this fpecial cafe 5 an abfolute one as to his perfon, 
h regard to all his creditors before the commiflion, but upon 
articular circumftance only, with regard to his eftate. 
tWefore fome kind of certificate he muft have, the prefent [ 258 ] 
lis to be a general one, and I do not find that the form of the 
ificate is fettled. 

rbe certificate being read, appeared to be a general one,* 
trcupbn Lord Chancellor mute it fpecial, by ordering this cer- 
ate to be allowed a difcharge of the bankrupt's perfon pnly, • 
not of hit future eftate and effects. 



a 5 8 



bankrupt 



Mirth the 20th, 
«743* 



CffovV the *6ih, 
*744- 



Aigafi the 7th* 
1746* 



0£b£er the 26th, 
»744- 



(Zz) ifo/* <w to a Bankrupt's future Ejfe&s. 

Ex parte Proudfoot. 
Vide under the Divifton y Rule as to taking out a fecond C&mmijfiom 

Ex parte Burton. 
Vide under the Divifton^ Rule as to the Insolvent Debtors Aft* 

Ex parte Green. 
Vide wider tin fame Divifion. 

(Aaa) Rule as to a Cejpo Botiorum. 

Ex parte Burton. 
Vide under the Divj/ion, Rule as to the Infolvent Debtors A£?m 



[ 259 ] (Bbb) Rule as to Depofts under Commiffiom of Bankruptcy. 



Bromley v. Child. 

A Petition on the behalf of the rcprefentative of a perfoj 
who was intitled to navy bills to the amount of 6000/ 
and who had in the year 1 7 1 1 depofited them in the hands 
Sir Stephen Evans and his partner Hale, who gave a note fp 
fying them, and promifing to be accountable. In fix mo 



Cfhkr the 19th* 
*744-1 
Cafe 139. 

A* intitled to 

nary bills in 

17 u, icpofiti 

them with Sir 

Sttf ben Evans, _ 

to be accounta- after Sir Stephen Evans becomes a bankrupt. 

ble for them, and 

in fix months afterwards becomes bankrupt. The reprefentative of A. petitions to be admitt e d I 
lore the Mailer 'to prove both principal and intereft to the time of the decree, as nary bills in \ 
nature carry intereft. As this is a fpecial depofit, a calculation (hall be made of the value of the w 
intire thing depofited, both principal and intereft at the time of the depofit, and intereft not to raa« 
as in a fimpie debt. 

The application now was, that the petitioner be admitted I 
fore the Mafter, to whom the caufe (lands referred between I 
aflignecs and reprefentatives of Sir Stephen Evans, to prove 
the principal and intereft to the time of the decree, as navy I 
in their nature carry intereft. 

When the petitioner appeared before the commilEonert 
bankruptcy, they fct a value upon the navy bills, according ( 
the market-price they bore at the day of the depofit, which f^ 
only 4200 /. becaufe there was a large difcount, as there 
no publfck fund appropriated for the payment of thenu 



bankrupt. 259 

T^r J Chancellor : I cannot allow the petitioner to come in as a Bromley*. 
creditor before the Mafter for the intereft upon the navy bills as c * lkD ' 
well as the principal, becaufe there i« a plain diftin&ion between 
debts that carry intereft and a fpecial depofit of goods and ftock; 
for in the former the intereft (hall be continued down to the 
date of the cornmiflion (1); but in the latter 'tis othcrwife, for 
the intereft flops from the time of the depofit, and a calculation 
(hall be made of the value of the whole entire thing depofited, 
both principal and intereft, be it ftock or goods, according to the 
market price at die time of the depofit, and intereft not allowed 
to run on as in the cafe of a fimple debt. 

The petition difmified. 

(1) Sec Bnme/ey r. G—dcre 9 ante 79. Ex parte Bennett, pofi. 2 vol. 5 2 1. 
(Ccc) Rule as to Relation under Commijftom of Bankruptcy. [ 260 ] 



Barwell and Others, — — — — « Plaintiffs. 



March 5thj 



Ward and Others, -— — Defendants. ,7 ^ 

k HE defendant's brother conveyed the moiety of a rever- Cafe 140. 
fionary eftate for lefs than half the value to her, and in a where the aft 
nth afterwards furrenders himfelf to prifon, and during his ^ bankruptcy »• 
\ there, before the two months were expired, he turns his tw^mlTnths, V 
; debts into notes, and indorfes over one from Sir Roger perfon /hall be 
owe, and another from Sir Francis Shipworth to Barbara and dec ™' J •* bank- 

* \ „ r - r nipt from the 

faret Ward* Hrft day <>f hit 

A cornmiflion of bankruptcy was afterwards taken out againft fat-render to P ri- 
Krd, and the plaintifft were chofen aflignces, who have brought £* y £ l ^l 9 
^ bill to fet afidc the conveyance, and pray that the plaintifls, reach all jour- 
I the other creditors may have the benefit of the faid eftate, nwd»t« traaf- 
' that the deeds relating thereto may be delivered to them, "**' * /n , 
that the faid notes and fecurities may be alfo delivered ^>^w- <S*^* 
lAem, and that they may have a fatisfadVion from fuch of j / jfc S^£- 
I defendants to whom the fame were indorfed, affigned, or " /? 

Ihe eoonfel for the plaintifft infilled, that the conveying 
b far half the value is an aft of bankruptcy of itfelf, and 
t die fitter of the bankrupt ought to be directed to convey 
I fame to the aflignces, and that the notes being tr an tac- 
it daring the intermediate time between his imptifonment 
\ die lying there two mentis, that when the two months were 
iffcac, he (hall be deemed a bankrupt from the fir ft day of 
fimnder to prifon by relation, fo as to over-reach all intcr- 
•fiate tranfa&ions. 
[XI* the part of the defendants it was urged, that the feveral 
and the indorfement of the notes, were previous to 
1 bankruptcy, and that the bankrupt being indebted to 
1 defendant Martha Doughty in 450/. on bond, did, in Sep- 
fcr 1741* execute a warrant of attorney to confefs judgment 
he laid debt, and that being alfo indebted to his filter Bar- 
4L L H bara 



*6o *35anfttupt 

Barwelli/. hara Ward in 6ol. he did, by indentures bearing date in 
Wa * d ' ttcmbcr 1 741, convey to her and her heirs his reverfionar 
tereft of the faid premifles, who did then deliver up a b 
which had been given her for 150/. to be cancelled, of w 
debt 60/. remained due, and the deeds were executed a few 
after they bore date, but before Ward had committed an] 
of bankruptcy. 

Lord Chancellor : The prefent is a plain cafe, • and appea: 
be a fraudulent conveyance to cover the eftate, for the deed 
executed ' at a time when Ward was in declining circumfta: 
having in the October following furrendered himfelf in difd 
of his bail, and was confined in prifon. 
f 261 ] No more than 60/. paid for the moiety of an eftate in r 
Con, of the value of 39 /. a year, which is pretended nc 
be redeemable on payment of 60 /. but no claufe of this ki 
the deed itfelf, for it is an abfolute bargain and fale. 

The court in this cafe ought to do no more than to le 
'deed (land only as a fecurity for the money really and bom 
advanced. 

It is not difputed but that Mr, Ward was a bankrupt a 
• end of the two months, and that the aft of parliament by re 
makes him fo at the time he indorfed the two notes ; but i 
been faid by the defendant's counfel, the aflignees might 
brought an a&ion of trover, but it would have been vcr 
ficult to have defcribed the notes at law properly, and the: 
th^ plaintiff is right to come here for a difcovery. 

It has been alio faid, the bankrupt indorfed the notes tc 
a furnof money to put out his apprentice to another maftc 
the reft of his time. 

The mod equitable method is to allow him a grofs fum t 
the bankrupt's effeds, and commiflioners of late years ha^ 
commended it to creditors to allow it, and in my opinioi 
rightly, for it would be hard to make him come in as a a 
under the commiflion ( 1 ). 

His Lordjhip declared that the leafc and releafc of Septc 
1741, ought to be fet aftde as an abfolute conveyance , and ti 
only as a fecurity for what {if any) was really due from Ws 
bankrupt to defendant Barbara Ward upon the bond, and reft 
to a Mafler to inquire whether at the execution cf the faid det 
fuch bond wasfu!fjling> and what money was bona fide duefi 
bankrupt to Barbara t hereon 9 and if no money due at that timi 
Barbar zjhoufd then convey the fid prennjfes to the plaintiffs i 
for the creditors. 

His Lbrdfliip alfo declared, that the aflignment of ti 
notes, being after Mr, Ward was in point of law a bai 
is void, and dire&ed the Mailer to foe if the notes are 
hands of Martha Doughty^ or in whole hands, and whed 
hath received any money thereon, and to inquire what Q 
in confideration of the faid notes, and whether the fame 1 
plied to procure another mailer to the apprentice, and if ( 

(l) Sec E.x parte San J by, ante 149. 



15anftrttpt. a*i 

much was proper to be allowed (according to the ufual courfe cf Barwell «• 
proceedings under commiffions) for turning over the apprentice Waud « 
of a bankrupt to another mailer, and fo much to be allowed to 
Martha Doughty , and the furplus fhe is to pay over to the af- 
fiances, and deliver up the faid notes, and decreed the defendant 
Barbara Ward to pay cofts, fo far as relates to the conveyance to 
fcer, to this tijne (i). 

(i) Rfg. Lib. A. 1 744.. f. 233. Tribe Afilgnee of Langman v. Lcitb, 2 Durn. & 
1. WMer, Da-vies B. Laws, 3 76. King Eqfi, 1^1. 



(D dd) Rule as to an Extent of the Crown. r 262 ] 

Ex parte Marfball and Others ; in the Matter of Garway' % Mar*** sSA, 
Bankruptcy. 

T7ATTON was furety in a bond with Garway to anfwer Cafe 141. 
" particular debts ; Garway becomes a bankrupt, and an ex- Part of S.c. 
fcnt of the crown is taken out againft Hatton, who pays the ante 129, 131. 
W>t after difputing it for fome time, and is put to an expence ™ n extent of the 

toereby. crown is taken 

out againft a 

Aerty of z bankrupt who pays the debt, after difputing It fome time, and being put to an expence there- 
by* He (hill, notwithstanding he difpuled the payment of a juft debt, be admitted to prove the ex « 
fences of fuch fuit under the commiflion againft the principal. 

Hatton is fince dead, and his reprefentatives apply now to be 
admitted creditors under Garway's commiflion, and to prove 
flic expences he was put to in the difpute with the crown ; the 
Coonfel for the aflignecs oppofed it, and infifted that notwith- 
Aanding as between debtor and creditor, the latter is intitled to 
fcwc compleat fatisfa&ion againft the furety as well as the prin- 
cipal; there is no rule, that if a furety difputes a jufl: debt, and 
Occafions an expence by that means, that he (hall charge the eitate 
■of the principal with th£ expences of fuch a fuit. 

£ Lord Chancellor : I know of no fuch diftin&ion, and it would An extent of the 
lie a very hard cafe here, as tbe failing of Garway was in all pro- crown isanac- 
(nUity the foie occafion of the difficulties that Hatton was under, l j° n . an |l"f^" 
ted made him incapable of paying the demand of the crown ; and jnfta^e/ 
jbran extent is both an a&iou and execution in the fir ft in fiance, 
$Hatton 9 in his fituation, could not be fuppofed prepared to pay 
St immediately, and therefore no pretence to fay his reprefenta- 
;tncs (hall be precluded from proving the expences Hatton was 
jjtoputin the fuit with the crown. 

OWer the 26th, 

Petition on behalf of a bankrupt to be difcharged from a 
commitment under an extent of the crown, having fur- C a * e M 2 - 
himfelf to the commiflioners, and conformed him- Aban » :fU?t> 
'according to the a&s of parliament relating to bankrupts, though he lias 

conformed in 
t» the lifts relating to bankruptcy, cannot he difchirgid from a commitment under an 

""* S 2 Lord 



26a TSaMttttpt 

Amon\ z# r j Chancellor : The crown is not within the ftattttes o^ 

bankrupts, and therefore he cannot be difcharged from a < 
ment on behalf of the crown. 



jbgst/ithc 14th, 

1741. 



[ 2^3 ] (Eee) Rule as to Creditors ajfenting or % £Jenting to a Certifica& 

Ex parte Tamer. 
Vide under the Divifion, Joint and Separate , Gmmiflion* 
Ex parte Lindfey. 

CSfoitr the 

s6th, 1745. Fide under the Divjfion, What is, or is not, an E/cclion U Jm\ 

under a Commijfton. 



J2L 



MmtcI the 25 th, 
1750. 



December the 
lift, 1752. 



Nvoemhcr the 
loth, 1748. 

Cafe 143. 

An order for dif- 
folving an in- 
injun&ion nifi 
will be made 
•hfolute, not- 
withstanding the 
plaintiff if a 
bankrupt, un left 
he fliews caufe. 



Ex party WilHamfon. 
Vide under the Divifion, Rule as to a Certificate. 

In the Matter of the Stmpfon's Bankruptcy. 

Vide under the Divifion % Rule as to Partner/hip. 

(Ff f) Bankruptcy n§ Abatement. 

Anon'* 

MR. Wilbraham^ where the defendant had an or tfer for & 
folving the injun&ion mji> moved it might be made A* 
folute, unlcfs caufe (hewn before the rifing of the court. 

Mr. Senve/l of the other fide faid, the caufe was abated by 
plaintiff's having become a bankrupt fince the granting of 
injunction, and that the aflignees under the commif&on have 
as yet revived. 

Lord Chancellor : Bankruptcy is no abatement (1 ), and thcrt 
fore if he had any caufe to (hew he muft go on, or he would 

ibu 



(1) Bramhall v. Crofs, Exchq. Hill. 
Term, 1790. This was a motion to dif- 
mifs the bill with cofts for want of.pro- 
fecution unlefs caufe. The caufe (hewn 
was the bankruptcy of the plaintiff after 
the bill filed, and before the bill became 
difmiflible. The cafe of Tait v. Carwicb, 
a7r.l1 of June 1786; was cited, wherein 
the bill had been difmifled {but •without 
cofts) for want of pro fee ut ion notwith- 
standing the bankruptcy. The Lord 
Chief Baron thought, that the circum- 
ftancesof this cafe were fuch as to entitle 
the plaintiff* to no favour ; and the bill 
was difmiifed tvith cofts. In Sellas v. 
£*vyb»> Ciatt. December the %tb 9 1790. 



a motion was made to difcharge an otitt 
fordifmifling the bill, which was filed ij^ 

1788. The anfwer was put in in FebeHf 

1789. The fole plaintiff became a bafe 
ru pt in March 1 7 8 9. In December 1 789 M 
defendant without notice to the 
fignces of the bankrupt obtained 
Order to difmifs the bill for want of] 
cution with cods. The plaintiff gave 
tice of a motion to difcharge the 
of difroiffion for irregularity. ~~ 
fend ant's folicitor undertook in 
not to proceed on the order of 
and offered to pay the cofts, bat 
not pay them. Now ftorictm* 
by the plaintiff to difcharge ckti 




^Bankrupt. 

he injunction : Upon which he fhewed exceptions for 
which were allowed upon the common terms of procur- 
5 Matter's report' in four days. 



264 



Anon'i 



being at pre fen 1 1 bar to the af- 
continuing the fuit by fupple- 
bill. The cafes of Tait v. Car- 
d Bramhall v. Crofr were cited. 
Tburlovj at fir/t doubted whether 
Id dtfeharge the order: but the 
tion to have the order of difmif- 
eharged was renewed the 14th 
sty 1791, when his Lordfbipfaid, 
d not make an order difmifling 
mer order, becaufe that would 
ledge, that thrre could be an 
jade after bankruptcy and when 
:, as he conceived, was abated, 
ught it was abated, by analogy 
rment at law, which always takes 
n a bankruptcy before judgment 
nal or interlocutory ; and fo it 
the cafe of Monk v. Morris, 
. 93, and Waugb v. Av/ten, 
n Rep. 437. He faid, chat 
(landing the Exchequer prac- 
lis was an order improper to 
een made, and improper to be 
now: that it was a mere 
and that the bankruptcy before 
nt or decree was equally an abate- 

I equity, as well as at law : that 
in Atkyns 263, nvbere Lord Hard- 
voj reported to fay, it was mo abate - 
vas ill reported ; for the order, 
ad been examined, did not warrant 
•t : that the afftgnees (bould now 
r fupplemencal bill, which would 
> the proceeding from the very 

the bankruptcy, and fb caft out 
termediate order totally. His 
p admitted, that this was not a 

II of revivor, nor even of fupple- 
but an original bill in nature of 
omental bill : and that there tnuft 
?ee in the fupplemental fuit it- 
it ftill he thought, that the ori- 
ole was gone by the bankruptcy 

at law, and yet that fuch new 
the ailignees might take never- 
the benefit of the former fuit. 



He therefore refufed the motion to dif- 
charge the order for difmilling the origi- 
nal bill for want of profecution. Da- 
vidfon v. Butler, in tbt Exchequer the iZth 
of April 1793* A motion was made to 
difmifs the bill for want of profecution 
unkfs caufe. Mr. Cooke now (hewed for 
caufe, that the bill was filed for an in- 
junction again ft the defendant's proceed- 
ing at law upon certain notes, which 
were in the defendant's poflellion and 
drawn by one Baker** the co-partner of 
the plaintiff, after the diilolution of the 
co-partnelhip for a fubfequcnt debt, and 
at a time the defendant knew the co- 
partnership was difTolved ; and that the 
plaintiff became a bankrupt fince the 
filing the bill: he therefore infilled, 
id, that the fuit was abfoluteiy abated, 
and therefore not liable to be dilmuTed, 
for which he cited the cafe of Hellas v. 
Dawfon: idly, thatif the bill mould be 
difmifTed, yet that it ought not to be 
with cofts. Tait v. Carrjick, June 27th 
1786. Mr. Abbot contra faid, that there 
were cafes in the Exchequer, where the 
bill had been difmifTed, <viz. Tait v. Car- 
wick, and Bramhall v. Crofi. The Lord 
Chief Baron laid, it was the clear eila- 
bliftied practice of that court not to coh- 
fider Bankruptcy as an abatement : that 
the only difficulty arofe from the cafe in 
Chancery ; but as that cafe did not ap- 
pear to have been fo fully debated on au- 
thorities, they thought it ought not to 
prevail. He faid, that equity mould 
follow the practice of the courts of law 
in this refpect; and that in reafon the 
mere bankruptcy of the plaintiff ought 
not to prevent the defendant from being 
reimburfed, if he can, for the expence 
of the fuit. Hot ham Baron, and Tbomp- 
fon Baron, concurred, and the bill was 
ordered to be difmifTed with cofts. See 
alfo Lingard v. Wegg* J Bro. Cha. Hep. 
435- 



Egg) Arreft upon a Sunday for a Contempt regular. 

Ex parte Whitchurch. 

*m-~ s y^^ under the Divi/iou, Where good on a Sunday. 

$i 



Jmk* the %&> 
1749* 



264 



CAP. XVI. 

"Baton aim iFeme. 

(A) Hew far the Hujband Jhall be bound by the Wife's ABs 
before Marriage. 

(B) How far a Feme Covert Jhall be bound by the Acls in 
which Jhe has joined with her Hujband. 

(C) Concerning the Wife's Pin-money and Paraphernalia, 

(D) How far Gifts between Hujband and Wife will be fr 
.* ported. 

(E) Concerning Alimony and Separate Maintenance* 

(F) Rule as to a Pofibility of the Wife. 



£ 265 ] (A) How far the Hujband Jhall be bound by the Wife's Aaskfirt 

Marriage. 



Plaintiffs. 



Samuel New/lead^ Stokes and Sufannah his Wife, "1 
Atkinfon and Elizabeth his Wife, and others, L 

Samuel Searles, Miller and Balls, and others, — • Defendant* 



; , W***'*h t l t two chil 



^Mircb the sd, 
*737. 

k^luk.0 Cafe 144. HP ** ^ plaintiff New/lead is the eldeft fon and heir of Elix* 
%JtoJw]&L widow who A ^*^> late ^ c w ^ e °f Nentjlead fenior, who was the eldeft 
^^V7Tp :itwoch,1Jrcn daughter and coheir of Elizabeth Searles deceafed, by John Mat* 
LbO'Bdsb \ a°d Cr huf " ^ ;; her former nuft)and > and tn ^ plaintiff Sufannah is the youngel 
Sf V^SIirovifion made daughter, and another of the coheirs of Elizabeth Searles deceafed* 
**. . . 2i- n,-~ „^ by y^ /; Martyn 9 and tlie plaintiff Elizabeth the wife of Ji$4 
Athinfn, is the daughter of Sufannah Stoles ,• and grandchild «f 
t'.iemachilJ, Elizabeth Sear ies. 

and brin-? in 

poiTeifion, in her own right, of freehold, copjhold, and leafehold eftatei, by articles before herfcc*4 
xmrriagt, to which her hufband was a party, and by his confent, conveys the whole totraftees, A* 
the v ihould divide the freehold, copyhold, and leafehold, if no iflue of the marriage, in moieties, 0*^ 
tlu* plaintiff her grardfon, hi* heirs and affigns, the other to her grandaughter in fee, provided i/th** 
mould be any child or children of the marriage, that child or children to have an equal fhare oftfcf £■ 
elbter, v.ith the grandfon and grandaughter. 

The hi Iband and wife afterwards mortgage the fettled eftates, to pcrfon* who had notice of the feUlimrtfi 

Declared, thatthefettlementisno voluntary agreement, but a binding one, and no iniHnce where fee* 

a limitation has been held fraudulent, aod void again ft fubfequent purchasers, or creditor! ; for if* 

mould, no widow, on her fecond marriage, would be able to make any certain provision for the iffneof i 

former, 

Mr. Cornwallis feifed in fee of freehold and copyhold, and prf 
fcfled of leafehold, held of the bifhop of Norwich in Suffolk, d 
the yearly value of 150/. made his will in 1698, having firf 
furrendered his copyhold eftate to the ufe of his will, and there 
by gave to Grace his wife all his freehold, copyhold, andlcafc 
hold, for fo long as (he fhould continue his widow, and «W 
her deceafe, then he gave the freehold, copyhold, and kafchoti 



TBaron anU JTcme. 265 

o Elizabeth Searles, then Elizabeth Marty n his daughter, Kxwitiad v. 

leirs; the teftator died foon after. Siailii. 

eth Searles, before her marriage with the defendant 

\earles, by indenture dated the 30/A of April, 1709, be- 

r of the firft part, Samuel Searles of the fecond pa,rt, 

d Malty ward of the third part, reciting the will of 

nwallis, and that a marriage was intended between 

jmd Samuel; and that it was agreed Elizabeth mould y 

difpofition of her eftates after the death of Grace ; 

with the confent of Samuel for the fettlement of her 
)on fuch children, and grandchildren, as Elizabeth 
ive living, either by her late hufband John Martyn, or 
el Searles at the time of her death, did covenant with 
;1 Maltyward, that they and their heirs fhould after the 
marriage, and the death of Grace, (land feifed of the 

held by leafe of the bifhop of Norwich, and all other r 2 C6 1 
rftates of John Comwallis, given by his will to Elizabeth 
ter Grace's deceafe, to the ufes therein and after men- 
hat is to fay, when the freehold and copyhold lands 
>me to be vefted in Elizabeth, to .permit Samuel Searles 
t to his own ufe, during the coverture, the rents and 
lereof, and if Elizabeth furvived Samuel, then fhe to re- 
in during her life, with a power to Elizabeth to charge 
dates by her will, or any other writing, with 200/. to be 
r her deceafe, as (lie fhould appoint, and for want of 
mtment, to be paid to Samuel, and after the deaths of 
d Elizabeth, that the trtiilees and their hclrsjhoufd divide 
Id, copyhold, and leafehold eflates in manner following, {that 

if no ijfue between Samuel and Elizabeth living at her de- 
\t then they fhould convey one moiety of the faid premijfes to 
" the plaintiff Newftead, his heirs and affigns, and the other 
the ufe of the plaintiff Sufannah Stokes her daughter for 
isnder to her grandaughter the plaintiff Elizabeth Atkinfon, 
and affigns ; provided, if there fhould be any child or chil- 
veen Samuel and Elizabeth, that then each fuch child t$ 
tqual fbare of the faid eflate, with the plaintiff Newftead 
abeth Atkinfon. 

narriagc took effeft, and the defendant Searles cntred 
j freehold, copyhold, and leafehold lands, and received 
i thereof, upon the death of Grace, which happened in 
nd enjoyed the fame unto the death of Elizabeth, which 
din September 1733, without leaving any iflue by the 
it Searles ; the plaintiff on the death of Elizabeth, became 

the faid moiety under the fettlement, and Sufannah 
the other for life, with remainder to Elizabeth Atkinfon 
heirs, and infift the fame ought to be conveyed accord- 
ad that the deed of the 30th of April, 1 709, ought to be 
nto execution ^ and therefore by their bill pray an account 
•cnts, fcfr. received from the freehold, copyhold, and 

1 eftates, fince the death of Elizabeth Searles, and that 
ety of the refidue of the profits may be paid to the plain- 
j S 4 tiff 



266 Oi5atort ann jFemr. 

Kewstiad v. tiff New/lead, the other to the plaintiff 6Vafc/, and Sufannah 
Siables. w j£ c ^ and t j lat ^ j e g a j e jj ate Q f t jj C fcjj freehold, copyhc 

and leafehold eftates may be granted, furrendred, and conve 
to fuch of the plaintiffs as are intitled to the lame, according 
the fettlement of the 30th of Aprils 1709. 

The defendant Searles in 17 19, together with Elizabeth 
wife mortgaged the freehold eftate for a term of years, for 20 
to Pindar^ and the leafehold eftate was afterwards affigned 
him, as a further fecurity, and Seor/esznd his wife levied attl 
time, and afterwards, fines, whereby the freehold and leaiick 
became veiled in Searles in fee, after Elizabeth* % death, fubje 
to the mortgage. 

Searles infifted that he was intitled to the equity of redem 

tion, and that his wife executed fuch deeds and fines oat 

[ 267 ] affection to him, and alfo that Elizabeth dying without appoii 

ing the two hundred pounds under the deed of the 30th olAp\ 

he ought to have it paid to him. 

The defendant Miller claims as affignee of Pindar 9 * mc 
gage term, which after fcveral mefne afBgnments became vdl 
in, him the 26th of March f 1733* at which time he advaiK 
a further fum to Searles and his wife, and that there is n 
due to him for principal 13 10/. befides intereft, and fays t 
he never had any notice, till after the death of Elizabeth Sear 
of the plaintiff's claim, nor of the indenture of the 30th 
April f 1709. 

Lord Chancellor : The queftion is, Whether the articles 
the 30th of April ', 1 709, are for a valuable confideration s 
'binding, or ought to be confidered as voluntary and fraudulc 
with refpeft to fubfequent creditors or purchafers? 

If 1 was to lay it down as a rule that fuch articles as thefe 
not binding, it would become impofiible for a widow on her 
cond marriage to make any certain provifion for the iffue a 
former, and the fecond hufband might then contrive to def 
the provifion made for thofe children ( 1 ). 

I am of opinion thefe articles ought not to be confidered ai 
voluntary agreement, and that the plaintiffs are intitled to rd 
in this court. This is the cafe of a widow, who has two ch 
dren by a former hufband, and no provifion made for them, t\ 
thofe two children have each of them a child, and the moth 
being in poffeffion in her own right of freehold eftate, leafehol 
and copyhold, the fecond hufband, if there had been a cW 
born alive, would have been intitled to be tenant by the curtc 
of the freehold, and alfo to the leafehold and copyhold immed 
ately upon the marriage. 

To prevent this, by the articles before the fecond marrisg 
200/. is allowed to be raifed by the wife out of the eftate, ai 
in cafe there fhould be no children of the fecond marriage, tin 
one moiety thereof was to go the plaintiff Neiv/lead bis heirs » 
affigns, and the other to Sufannah Stokes for life, remainder toJE 

f 1) Hoe Cotton v. King, 2 P. W. 358. 674. Countefs fif Strathmri ▼. *• 
2 Bro. Cba. Rep. 345. 

9+ 



*Baron aim JFeme. 267 

ykth Atkinfittj her heirs and affigns, the former her grandfonN<w«TZA» w 
bj the firft marriage, and the latter her daughter and gTandaugh- S* A * L *** 
ten but if there fliould be any child or children of the fc- 
cood marriage, then they were to have an equal {hare with the 
plaintiffs. 

Upon the mortgage to Pindar^ by the contrivance of forne 
country attorney, Elizabeth Searles and her hufband levied a fine, 
ind in the deed to lead the ufes there is a compleat recital of the 
will| under which the wire claimed, and of her marriage fettle- 
merit in fo ample a manner, that the will and fcttlemcnt muft 
ncceffarily have been laid before him, and he muft confequently 
have had full notice of it as agent tor the mortgagee* 

The children of the firft marriage ftand in the very fame 
plight and condition as the iflue would have done, if there had 
been any of the fecond marriage, and even are provided for be- 
fore them* 

Suppofing there had been iflue of the fecond marriage, and [ 26B J 
they had brought their bill to carry thefe articles into execu- 
tion, upon a decree in their favour, would not the children 
by the firft marriage have been equally intitled to a benefit from 
the decree? 

Taking the cafe with all its circumftances, 1 think the fct- 
tlement no voluntary agreement, but a binding one j the fta- 
tntes of the 13 and 27 E//z. that make conveyances fraudulent, 
are voluntary conveyances, made againft purchasers upon a 
valuable consideration, or bona fide creditors : but it would be 
difficult to (hew that fuch a limitation, as in the prefent cafe, has 
been held fraudulent, and void againft fubfequent purchafers or 
creditors * ( x ). 

The prefent is a ftronger cafe, for here are reciprocal con- 
fiderations both on the part of the hufband and wife, by the 
prorifion under the articles for the children of the fecond 
marriage. 

*"JmkmM v. Keymu, 1 htm. 150. Gf 237. there Sir Ntcbtlat K*ymh> being Unant Hardr. 395. 
"fertile, remainder to bit fon Charles in tail, in 1641, in consideration of a marriage Ch. Caf. 103* 
* to be had between hir fon and Blanch Maafell, and 2500/. portion, levied a fine to the Ch. Rep. 27^ 
"vfttlf Six Nicholas Key mis for life, remainder to Charles and Blanch for their lives, re- Gilb. fee Pracl. 
u nabder to the hein of the body of Charles of Blanch begotten, remainder to the heirs 303. 
" «f the body q{ Charles, with power for Sir Nicholas Key mis to charge the premifles 
" *ith 2060 1. Sir Nicholas and Charles in 1642, joined in a lcafc and rneafe to David 
u JeaJms and his hein for 2000/. on condition of payment of zcoo/. with intereft fome 
" yean after, to be *oid, Blanch afterwards dies without iflue, Charles Key mis marries 
"toother wife, by whom he had iflue the defendant, and dies, the mortgigee dies, and 
"•is heir brought an eje&ment, and adjudged the IcaL'c and rcleafc was no good exe- 
cution of the power at common law. He then brought hi* hill in equity on thefe 
"frovnds ; ifl, that the consideration of the marriage of Blanch, and the 2500/. paid 
" with her, did not extend to the defendant, being an iflue by the fecond venter, and fo 
"tie cftate in remainder whereby he claimed was voluntary ; (twj other ground* not 
"sttteriai to this cafe) buf/on the firft Lord Keeper BrlJgman declared that the on- 
*4derttioo of 2500/. paid on the firft marriage, mould extend to the iflue by the 



(1) See ante WMer v. Burrows 94. Doe ex denu Wat/on v. RomleJ^e. 
C*p. 705. 

The 



268 'Baron aim jfeme; 

NtwsTEAD v. The mortgagees had notice that the lands were liable 



S^ARLIS 



articles, and therefore the plaintiffs are intitled to have 
nefit of them againft the defendants who are affc£ted by 
and h{s Lordfhip decreed an account to be taken of wha 
for the principal fum of 200 /• and intcreft, from the < 
Elizabeth the late wife of defendant Searles, and to ta: 
his cofts fo far as relates to the mortgage of 2co/. and 1 
ing paid what (hall be reported due, ordered the dei 
Miller and Searlcs to convey the freehold, and toaffign tl 
hold, and furrender the copyhold free of all incumbranc 
by them, to the plaintiff New/lead, Sufannah v the wife o 
and Elizabeth the wife of Athinfon, according to the feven 
and interefts therein provided and limited to them by 
noarriage articl.s (1). 

(1) Reg. Lib. B. 1737. fo. 478. 



£ 260 3 (B) How far a Feme Covert Jhall be bound by the Acfs in n 

has joined with her Hufband * 

Jur.< the iSth, MtCaI f V ' IveU 

>737- 

Vide Title Award and Arbitrament > under the Div'if on, £ 
Caufes Jet aftde. 

^**^' jfef^jjiV) Concerning the Wife's Pin-money and Rir^hcm 
"^Wthe.s**^^-. ^ v . Lewis. 

Cafe T4C. TV^T ^^* Lewis had three hundred pounds per annui 
S. C. poft. ' JLVA on ner f° r pin-money; for feveral years bef 
a vol. 104 Lewis* s death he paid her only two hundred pounds/^ 

n^im^lo-" and there was cv ^ ence rea(i > that often > on Mrs * Lewi 
«ey, the hufband plaining of being paid fhort, Mr. Lewis told her fhe woi 

for f fev l™ , / e T ' lt at ,aft * 

p'idheraco"/ The qucttion was, Whether (he fhould be let in to ] 

oniv, but pro- arrears of her pin-money, made a charge on the ; 

vhole at hft. «... 

If the wife accepts lefs, or lets her hufband receive what flic has a right to receive to h 
wfe, it implies a confent in her tofubmit to fuch a method. But where the pin-money is j 
te nofKlne, her agreement with the hufband relating to her feparate eftate amounts not to a new. 
jnd hi.- promiiiiifc ihe fhould have it at lad is an undertaking to pay the arrears. 

tSm*^**/ .Lord Chancellor : I allow that it is a general rule, whe 

^^^^^j^^/accepts a payment (liort of what (he is intitled to, or 
'J. j&'/ts- J^/?' hufband receive what ihe has a right to receive to her 

ufe, it implies a confent in the wife to fubmit to fuch a 

where the hufband and wife have cohabited together 
time after \ but here is no pretence that the pin-money 



Xacon ana feme. 269 

jailed from by the wife, for there is evidence of feveral pay- Ridout ** 
merits to nomine ; and though a wife may come to an agreement L * WI »* • . 

with her hufband in relation to any thing (he is intitled to fepa- jfa^^a* f^*"'?* 
mtely, yet this does not amount to a new agreement, for here^ * £ j 

•was a promife (he Ihould have it at laft, which was an undcr-yt/^^f J^U****** 
taking to pay the arrears ; (he is therefore intitled to have the /\y/ 
arrears of her pin-money raifed by the truftees out of the eftate, ^ ' 
which was by fettlement charged with it. 

His Lordfiiip therefore decreed, that an account fliould be 
taken of the arrears of the three hundred pounds a year due to 
the defendant, and what fhall be found owing on the balance of 
that account was to be contidtred as a charge on the teim of 
500 years created by the marriage fettlement, for fecuring the 
payment of the three hundred pounds a year ( 1 )• 

(0 Reg.' Lib. B. 1740. fol. 35. See 267. zVtf. 7. 190. Sec alfo OJIej v. 

Countcfs of Warwick V. Edwards, I Eq. Offley, Pre. Cba. 26. Po<iVrI! v. Hanity, 

Ab, 14.0. pi. 7.. But in general a wife is z P. IV. 82. Thomas v. Bcnnct, ibid. 

only allowed to come in as a creditor for 341. 
one year's arrear of pin-money. 1 Ftf. 

(Dj How far Gifts between Hujband and Wife will be fupported. r 270 1 

& £* iT&f 1 ™ M ° f J ° hn L " CaSi by Mary 1 Plaintiff. >'v the »*, 
*is firft Wife, • ■ 3 j 7 -s. 

ifabella Lucas, Widow of the faid John Lucas, 1 n c , 
and Ifabella Lucas an Infant, their Child, J Ueiendants. 

^. 
Ji/fdR F Lucas, in her laft illnefs, requefted of John Lucas c a f e ,^5. 
*- her hufband, that her wearing apparel, gold watch, pearl Mary Lucas t* 
Necklace, rings, .ornaments, and feveral pieces of plate, coins, hcrUftiUnef* 
and other things in her poffcffion, and ufed by her, might be n X^?h"th"r 
p*en to the plaintiff, and put into the hands of Mrs. Dunjler wearing app.ue:, 
(a friend) foT the plaintiff's uie ; which John Lucas promifed, and gold watch, pea il 
after her death he gave the faid things to the plaintiff, and made .^^Vr po?- S 
an inventory and valuation of the fame, to the amount of 187/. fcfllon, and uki 
8x. 6rf. and locked them in a ftrong cheft, and after making by her, might 
three copies of the inventory, put one into the cheft, and gave djughur,°ind r 
the key with another copy to Mrs. Dunjler> and the third to put into a 
James Lucas his brother, to the intent it might be known what ^ ,e "^ \ Ii,r ;? f 
*as given : in the prefence of feveral perfons he fent the cheft, ir'suf -/which 
*iththe things therein, to Mrs. Dun/ler 9 for the plaintiff's ufe, the hurtund pro- 
ud <hc accepted the fame on the plaintiff's behalf. ulrit^d^Z 

^ gave the faid 

Juftptohis daughter, and made an inventory) and locked them in a ftrong cheft, and gave the kc> to 
*"• wife's friend, and fent the things therein to her for his daughter's ufr. Tho* the hulb.ind aftcr- 
**fc took Tome of the things into his poffcllion again, that \% not fufficient to invalidate the gifc^ 
which was perfect by the former act. 

John Lucas, after his firft wife's death, by articles of the 26th 
*m VJ^* T 734> between him of the firft part, and Holmes and de- 
fc&dant Ifabella of the fecond part, reciting an intended marriage 
> ... " between 



3 



27° T&aron an* Jeme. 

L l CA * *' DCt ^ ccn ^ m an <* Ifabella, and that Holmes had agreed to pay 
2000/. and that he had a daughter (the plaintiff) by afo 
wife ; the faid Lucas agrees that if he fliould die in the life- 
of Ifabella, and there fliould be any child between them, 01 
the plaintiff fliould be then living, that then Ifabella fhould c 
one third of his perfonal eftatc, after payment of -hit debt! 
funeral expenccs, and her widow's chamber, according to 
antient cuftom of London \ and that the children of fuch 
riage, together with the plaintiff, if living, fliould enjoy 
third of his perfonal eftate for their refpe&ive ufe, and tha 
provifion made for Ifabella was in full of her dower and thin 
John Lucas in 1 736 died, leaving Ifabella his wife, an< 
only child by her, Ifabella the infant, and alfo his dau{ 
the plaintiff, and by his will of the 10th of June % 1 7 36, din 
that the furplus of his eftate and effe&s, after his marriage 
tra& was duly provided for, and all his perfonal eftate, (hou! 
divided between liis wife and daughters, the plaintiff, and If 
the infant. 

The defendant Ifabella the widow, infifts on 1000/. Sout 
annuities, which the teftator in his life-time transferred to 
and as (he fays intended thereby to give them to her, and by 1 
T 271 1 of mouth declared that (he fhould hold and enjoy them to 
own ufe, and before the transfer promifed often to transfer t 
to her own ufe, and gave inftru&ions to an attorney to dr 
deed to declare them to her own ufe, who accordingly veil 
in truftees, in truft that they fliould transfer the fame to 
fendant for her own ufe, but that teftator (on information 
it would be better) transferred them to the defendant, anc 
fured her that fuch transfer would effectually fecurc them tc 
and which he did as a further provifion, and to make it c 
to her fortune. 

And as to the watch, pearl necklace, and other things clai 
by the plaintiff, infifts that the teftator voluntarily, and of his 
accord, fent for the cheft, and difpofed and altered the th 
therein, as he thought fit, and that he made her a prefen 
the fnuff-box, and a pearl necklace out of the cheft. 

The bill prayed a delivery of the cheft, and the things tl 
in contained, and a diftribution of the* eftate according to 
marriage articles, and the will of the teftator John Lucas. 

Lord Chancellor : As to the firft part of the bill, I an 

opinion that the delivery by John Lucas of the things in a c 

to Mrs. Dunfler for the ufe of his daughter, who was the c 

left by the firft wife, according, as he faid, to thef promife n 

to his wife in her life-time, is a fufficient delivery, to veft 

property in the daughter, and though he did afterwards : 

fome of the things into his pofleflion again, as the watch 

necklace, that was not fuflicicnt to invalidate the gift, wl 

was made perfect by the former a£h 

hilftand and wife As to f * ie trans ^ cr by John Lucas of 1 000/. South-fea am 

will be fupport- ties to his wife in her own name, I am of opinion this is 

cdin this court, a goCK j transfer fo as to affe£ the marriage articles, by mal 

callo w the any alteration in the grofs eftate of the teftator, the whole 

0. w| 



"Baron anti if erne. 271 

which was liable by the marriage articles to be divided into fuch I^cai v. 
proportions, which he could not voluntarily alter ; and there- LwCAf# 
fore this is as much a fraud on the articles, as it would be on 
the cuftom of the city of London y yet it is good as again ft the 
teftator himfelf, and to be anfwered out of his teftamentary 
ftare, if fufficient ; and in this court, gifts between hufband 
and wife have often been fupported (i), though the law does 
ftot allow the property to pafs (2) ; it was fo determined in the 
cafe of Mrs. Hungerford and in Lady Cowper** cafe, before Sir 
Jofeph Jekjll, where gifts from Lord Cowper in his life-time 
were fupported, and reckoned by this court, as part of the per- 
ioral eftate of Lady Cowper, 

" His Lordftiip declared that the jewels and other things 
f< given by the teftator to the plaintiff, and delivered in a cheft 
•* to Mrs. Dunfter, for her benefit, are not to be confidered 
cc as any part of die teftator's perfonal eftate, and that what 
** (hould appear to be the clear perfonal eftate, after payment 
k c of debts, (hould be divided into tjiree parts ; one third to be 
r * retained by defendant Ifabella in her own right, by virtue of 
rc her marriage articles ; another third to be the teftamentary j. - 

tm part <rf teftator, and the remaining third is to be divided into I *?* J 
r * moieties, one to belong to the plaintiff, the other to Ifabella the 
'* teftator's daughter, by his fecond wife. 

11 And his Lord (hip declared, that the transfer of the 1000 /. 
■ c South fea annuities, bv the teftator to his wife, ought not to 
* c take effeft in prejudice of the marriage articles, but to be 
Cc brought into the perfonal eftate before the divifion be made, 
** but mat fuch transfer ought to be confidered as a good gift 
C€ againft the teftator John Lucas himfelf, and that the defendant 
C€ Ifabella the widow ought to receive a fatisfa&ion for the 1000/. 
€< Soutb-fea annuities out of the teftatot's third or teftamentary 
c< part of his perfonal eftate, fo far as that will extend, and doth 
f< therefore order that the teftator's third part be applied in the 
" firft place, to make good to the defendant Ifabella the value of 
fl the Soutb-fea annuities, and the dividends thereof from the 
* death of the teftator." The jewels, &c. his Lordftiip di- 
ttoed to be .delivered to the defendant James Lucas for the be- 
nefit of the plaintiff (3). 

(1) Slanting v. Stjle, 3 P. W. 338. (2) See Moyfe v. GyUt, 2 Fern. 385. 
«r« v. Freeman, Bunb. 105. Bletfow Beard v. Beard t polL 3 vol. 72. 
*>l*yjer 9 1 Fern. 244. fFatfym v. (3) Reg. Lib. B. 1737. fol.421. See 
"titynty p*fl % 2 vol. 97. note I. Graham v. Londonderry, poft. 3 vol. 

393- 



*7* TSaron ann JTetne. 



(E) Concerning Alimony and Separate Maintenance* 

Tdruary the Moore v. Moore. % 

17th, 1757. 

Cafe 147. Q IR Richard Francis Moore by fettlement dated the li 
A. before, and O Oclober 1 707, made before, and in confideration of the 
If ^arrilgc° n ria S c t0 be had bctween the P^intiff and defendant, and of 6c 
and a portion her portion, conveyed lands to truftees for 99 years, upon 
with his intend- to p UV out f tne rents ioo/. a year, tax free, by half y 
taSSTaS! Payments, to Lady Moore for her feparate ufe. 

upon tru It to pay 

xoo/. per ann. to the Lady for her feparate ufc. She many years after the marriage, upon difput 
tween her and her hufband, leaves him anii goeo abroad. The truftees (there being great arrears 
annuity). bring an ejectment for recovery of the terms, and the hufband his bill for an injunction 
the proceedings in ejectment. 

Lord Chancellor was of opinion he could not relieve againft the payment of the annuity, norwith 
ing the hufband by his bill offers t j receive his wife again, and pay her the annuity, if /he wou 
with him/ but directed an account, and on payment of the arrears of the annuity, the injunc" 
be continued, orotherwife, diil'olvcdj and if default in the growing payments, the wife to be 
kerty to apply (1). 

*£*- r. ^Wy^H- The marriage took effect, and after living above twenty ; 
(ft**.,^ u^/i^ with great harmony, upon fome differences and difputes ai 
, <y &Lf>. 40*-. between the hufband and wife, fhe went privately from hi 

*£ £— ■ January 1 728, and got into France, and now refides there \ 

"*** v ^ f ^ -fcX having prevailed with her truftees to bring an eje£rmen 

<Z-*+6s**Sf*^ the recovery of the term, there being great arrears of the 

t -^£t~. .*Sf/- nuity due, they were proceeding to judgment and execu 
"" when the hufband thought proper to bring his bill in eq 

complaining of his wife's withdrawing herfelf, and infifted 
(he is intitled to the annuity only during her cohabitation 
him, and offers to pay the annuity if (he would live with 
£ 2*3 1 am * to rece * ve ner kindly, and forgive what is paft ; and tl 
fore prays that he may be relieved againft the payment 
annuity, and may have an injunction to flay the proceeding 
ejectment. 

After the ejectment brought by the truftees, the huf 
commenced a fuit in the ecclefiaftical court, for a reftitutic 
conjugal rights, and upon the wife's not appearing to the 
cefs of the court, a fentence of excommunication was pronou 
againft her. 

For the plaintiff in this cafe, there were two poiuts cl 
infilled upon. 

Fir/l, That his wife by her mifbehaviour, in caufelefly dc 
ing her family, had forfeited her pin money. 

Secondly, That it was intended for her only to fpend in 
family. 



(1) SceSiJKtyv.SiJney, 3 P. W. 269. t*r, 3 Cat's P. W. 276. Wstfy 
2 Eq. Ab. 29.pl. 37. Blount v. Win- Wntkjns, fo/l. 2 vol. 96. 



"Baron anu feme. 273 

Upon which it was argued, that by the marriage contraft, (he Moore v. 

> obliged to cohabit, and that failing in this, (he ought not to M °Q"- 

ave her annuity, and that therefore it is equitable to rcftrain her 

U (lie returns, and lives with her hufband, and behaves as (he 

tight to do, and that he has no remedy to get her back but by 

topping this pin-money. 
That this allowance was only to promote harmony between 

ic plaintiff and the defendant, and to enable her to do adrs of 

ounty in her family, therefore, when the reafon for it ceafes, 

ic allowance ought to ceafe likewife. 
That in many cafes the court have interpofed to make a pro- 

ifion for a wife, on the mifbehaviour of the hufband, pari ra- 

one they ought to interpofe, where the wife mi(behaves, as in 

ic cafe of Colitnore v. Coleman (i), and tJ.wwAvi v . Oxendcn, 
Vera. 493. and that, in the preferit cafe, the Lady's deferring 

er family, in the manner (he has done, is a fufficitnt reafon for 

»e court to interfere fo far as to flop the payment of the pin- 

loncy, in order to induce her to return to her duty. 
Mr. Cox, for the defendant, argued that thefe three confidera- 

ons naturally arofe upon this cafe. 
Firft, Whether the fettlement (hall be taken ftri£Iy, or 

blether it fliall be taken to intend a benefit to the defendant, 

rx condition only of cohabitation. 

Secondly, If to be conftrued conditionally only, then whether 

>xi cruel ufage, {he is not juftifiable in feparating from her< 

mlband. 

Thirdly, Whether the ufage here has been fuch as may juftify 

ber feparation. - 

He argued, that according to the words and legal operation of 

the deed, there is a provifion at all events for the defendant of 
loo/, a year, and quoad hoc, (he is to be confidered as a feme folc, 

and as a ftranger to the plaintiff; and to take in other matters 

txtrinfick, and not appearing from the words of the deed, would 

fcc judging of another deed, not of this. In the cafe of Wills, 

ymch generally allows the greateft fcope, in order to lot. in the 

rotcnt, the conftru&ion has always been bounded and circum- 

fcribed to the words, for the general rule has uniformly been, that L *74 J 

*nlefs the intent can be collected from the words, it is in vain to 

urge it, for that otherwife it would be making a man's will, not 

*onftruing it, and deeds are to be conftrued more ftrictly, and 

Ac rule of law is, that they are to be taken moll (Irongly againft fa 

*ta grantor, and mod beneficially for the grantee (a). That andC^LU-iSj. 

?*o centra faBum fuum venire potefl. 2 Injl. 66. but to corner, and 197.2. 

"Ho the conftru&ion contended for on the part of the plaintiff, 

*°old be to invert both thefe rules. 

In Afiry v. Ballard, 2 Mod. 193. it is faid men's grants mud 
■* taken according to ufual and common intendment, and where 
Jttds may be fatisfied, they (hall not be ftrained further than 

^ **y aie generally ufed, for no violent conftrucYion (hall be 

y flfcde to prejudice the right of any one, contrary to the plain 

l **&Mg of the words, 

<i)S. C.fjt. 3 vol. 296. 



874 O&ttott an* feme. 

Mo©»* v. If the words then in the prefent cafe are to govern, they ar 
Moots. £ o gjp^fg anc j pi a ; n> that they leave no room for conftruflior 
and to put a meaning upon them, contrary to the plain fenfe 
would be bringing things to the utmoft incertainty. In Edrklr 
MsC9.1xS.fr 1 ^{g ^ t h e j u dg es f a id they would not make a conftrucYioi 
againft exprefs words, and yet there was a flrong equity in th= 
cafe, to induce them to do it. 

If, in the prefent cafe, the defendant flood in need of the a. 
of this court, from any defeft in her fettlement, it might wi. 
fome colour of reafon be faid, that (he had forfeited her right 
it by her elopement, but even in fuch a cafe, though it appe-= 
ed that a wife had lived in open lewdnefs, yet (he was not C 
miffed with fuch an anfwer ; for in the cafe of Mildmay v. Mm 
may, I Fern. 53. and 2 Chan* Caf. 102. the plaintiff a ftr: 
covert, who had 50/. per ann. fettled on her by her hu(band 9 
be paid out of certain rents, fuggefted by her bill that he had* 
purpofe to defraud her of this annuity, procured the tenants 
furrender their eftatcs, on which the faid rents were referva 
and prayed that it might be made good to her by decree of th 
court; and notwithstanding it appeared that (he was a ver] 
lewd woman, and had eloped, the Lord Chancellor ordered, thai 
the huiband fhould ftand in the place of the tenants, and admit 
the rent payable, and (he to recover it at law as well as (he could: 
there the fettlement was merely voluntary, and after marriage, 
and the wife charged not only with elopement, but open lewduefs, 
and yet it was thought reafonable to decree in her favour, and 
give her fuch relief, that without it (he mult have failed at law: 
In the prefent cafe, the fettlement appears to be upon the higheft 
confiderations, that of marriage, and a large portion, and the 
utmoft charged upon the Lady is a bare elopement ; if therefore, 
in Mildmay* $ cafe, it was reafonable to aid her legal remedy, * 
fortiori it would be unreafonable in the prefent cafe, to reftraia 
her from purfuing it. 

As to the offer of the plaintiff to receive her, and on herre- 
turn to pay the annuity, there are many cafes, where fuch an 
offer, againft the exprefs contract of the party has* been rejefted, 
C 2 75 1 as * n ^ c cale °^ Seeling v. Crawley, 2 Fern. 386. and numbcrlefl 
more to the fame purpofe : for if a man will with his eyes open 
make a bargain, that he after finds reafon to repent of, he is not 
intitled to relief here, it is the effect of his own folly, and h* 
rouft take the confequences. 

It may -bcfides be material to confider, what fpecies or kind of 
offence it is that the defendant (lands charged with ; it is at 
moil but a fimple elopement, which is an oftence not taken no- 
tice of, or any way punifliable by the law of the land: by tte 
Common law, a wife was intitled to dower, notwithftanding *° 
elopement accompanied with adultery, and though by the (tab* 
82 m!*** - oi Wejlminjler (£) adultery and elopement are made a bar* 
dower, yet it has always been taken fo ftriftly, that the C& 
(0 P«rlc pi. without the other, has often been held to be not within the t* 
f?u. Abr. tit. tute ( c )» certainly both together, tho' a bar to dower, would bf 
Dower pi. 153. no bar to her claiming a provifion made for her by a joiottttf 
Tiu. N. B. tjo. m%\ 

htH. i 



•Baton nnn feme. $7$ 

;h, in the fpiritual court, the hufband may fuc her for Moot* •. 

of conjugal rites, and for refufal fhe may fall u nder Moo **» 
res of the church, yet that is not in refpecT: of elope- 
fuch a fuit may be as well where there is a cohabitation, 
ife. 

then, that in equity (he is punifhable, or that (he 
rhis refpeG be deprived of any of her legal privileges, 
to fet up an arbitrary legiflative power in the court, to 
Fences, and to punifh them by no other meafure than 
ifcretion. 

woman is juftifiable in deferring her hufband, where 
:r with cruelty, cannot be difputed^ but then another 
vill arife, whether the ufage which the defendant hath 
in the prefent cafe, be fufficient to juftify her conduct 

ars evident from the proofs on both fides, that there 
inual quarrels between the plaintiff and the defendant 
: pin-money, and they became fo publick, that one 
rears, the plaintiff himfelf declared, his wife had been 
r a clergyman to go away from him, and many of the 
fully prove, that the plaintiff diverted her of all kind of 
2nt, and made her not only as a cypher in his family, 
rom her even the refpecT: due to her from his fervants; 
his be fuch ufage as may juftify her conduct, mud be 

irved by Puffendorff y in his book of the Law of Nature 
ns, in the chapter of Marriage, that in cafe a hufband 
\ wife the refpe£i due to her fex, and her relation, fo 
r himfelf not fo much a kind partner, as a troublefome 
enemy, it fhould feem very equitable, that fhe might 
i by divorce. Barbeyrac in his note (rf) cites, to con- 
the Theodoftan Code, lib. 5./1/. 17. 
laws of our own country,* there are hardly any foot- 
3 by, or on which it may be faid with any certainty, 
uelty in, the hufband. In the cafe of the wife of one 
Hetly 149, it was fo far held, that fpitting in her face 
ty in the hufband, that the court refufed to grant a - , - 
a to the fpiritual court, on a fuit for a feparation, and I 7 J 
founded on this caufe, and faid by Richard/on chief 
srtainly the matter alledged is cruelty, for fpitting in 
5 punilhable in the flar-chamber. 

iancel/or: This is entirely a new cafe, and I do not 
' any like it that hath ever yet come in queftion. None 
1 cited, and 1 believe there are none ; but it is not this, 
ler difficulty in the cafe itfelf that makes it necefTary 
irticularly to fpeak to it, but becaufe fome things have 
ted of a much higher nature that require it. 
>ihts to beconfuiered arc, 

Whether in any cafe this court ought to reflrain a legal 
which a wife, or her truflccs have, to recover a feparate 
ace againft the hufband ? 
>: X Secondly ) 



Moor i v. 
Moon. 



276 'Baron ant! feme- 

Secondly, If from the evidence, in the prefent cafe, there * 
any reafon to lay this reftraint upon the defendant? 

Upon the firft it has been argued, that the defendant h 
caufelefly deferted her family, and Hood out contumacious 
againft the proceedings in the fpirituil court. 

Though this be a bill prima imprejficnh, I (hould think there 
might be cafes, where a hufband would t>e intitled to come into 
this court, to reftrain the truftces of his wife, by a decree here, 
from proceeding at law for her feparatc maintenance \ and it 
would be reafonable to do this, efpecially when (he elopes out of 
the jurifdi&ion of the ecclefiaflical court, for that would be de- 
feating their power, and there have I believe been cafes where 
there has been a fentencc for alimony in the fpiritual court, in 
which this court have awarded tie exeat regnums in aid of the 
fpiritual jurifciiclions. 

Thefe feparate maintenances are n ot to incourage a wife JO 
leave her hufband, whatever his behaviour may be ; for, waf 
thi s the conftrucHon, it would de ftroy the very en d of the mar- 
riage contract, and be a public de t nmcntT ~ 
i If a wife (he uld elope, be guilty of adultery, or a crimi- 
I nal converfation, or {hould leave her hufband without anycaufe f 
J and the ecclefiaflical court can only punifh her for contumacy 
I but fhe is intirely out of their reach as to any other punifhracnr, 
I fhould think a hufband right in his application to this court, to 
prevent her truftees from proceeding at law to recover her fepa- 
rate maintenance (1 ); but then the relief muft arife from a very 
plain cafe, where there is a criminal converfation plainly proved, 
and plainly put in iflue (2% 

But this is not the prefent cafe, for here is no incontinence, 
and nothing but the bare elopement is put in iflue ; fo that it will 
turn upon the fecond point, whether, upon the circumitanccs ol 
this cafe, there be any reafon to lay fuch a reftraint upon the dc« 
fendant ? 

Two things have been urged in behalf of the plaintiff. 

Firfty That thi wife has eloped without any caufe. 

S.rondfy, That lhe has been duly fummoncd in the ecclcfiadi- 
cal court, on the part of the plaintiff, for reilitution of conjugal 
rights, and has continued in contumacy, and as flic has been 
thereupon excommunicated, which is all the ecclefiaflical court 
can do, as fhe is out of their jurisdiction, the hufband cannot 
have any fruit from his fuit there. 

As to the full, I am afraid thefe feparate provifions do often 
1 occafion the very evils they are intende I to preve nt, and if the 

phintiii' ha.h made his wife uneafy in refpe^t ot the pi u-monejf 
as there is great reafon to believe he did, though this will no( 
juftify her going away, yet it may he an excufe, and poffiWj 
this agreement before marriage might be defigned to provide fa 
the wife, if fuch dillemion ihould happen between the parties 

(r) See IVatkins v. Wat kits 9 pcft. 2 M'athns v. iratkyns, pott. 2 vol. \ 
*°1- 97; Clarke v. Per : am t ibid. 337. Lad** 

[2 j See Sydney v. Sydney, 3 P. IF. 276. Lady Domran\ caic, ibid. 335* Jjfc 



[ *77 ] 



•Baton an&JFeme. 377 

M would be a juft inducement for them to feparate, though Wo«u Vl 
their quarrels fhould be of fuch a nature as are not proper to be ** 001 *» 
laid before a court. 

A$ to the obje&ion, that the plaintiff can have no effecl: from 
his ecclefiaftical fuit, I lay no great ftrefs upon it, for it was not 
inftituted in the fpiritual court till eight years after her going 
away, and after the eje&ment brought by the truflees; and tho* 
the fpiritual ceurt only fix citations^upon the church door, or fome 
other place, yet the hufband, who knew where (he was, might 
hare given notice to her, or at lead to her attorney, who was 
employed in the fuit at law. It has therefore the appearance of 
being commenced, in order to lay a better foundation for a fuit 
bcre. 

I do not find that the hufband has ever made any application 
to the wife, fince fhe feparated, to induce her to return, and 
therefore this cafe is diftinguifhable from Wkornvood v. Whorwood % 
I CA. Ca. 250. becaufe there the hufband, before the bill brought; 
rffered to be reconciled, and defired to cohabit with her, and 
ife her as his wife ; nor was there any feparate maintenance in 
iat cafe on the contraft of the parties. 

There is another thing that has great weight with me, the 
hlband's paying the annuity fince the feparation, for fix months 
rfter the wife was gone from him ; when ihe petitioned the 
&urt for other money upon a different truft, he, upon an appli- 
cation by a crofs petition to flop this, exprefsly fays, that he had 
jonihntly paid her the annuity ever fince fhe left him, and of- 
ered to continue it : This is a flrong prefumption that he 
bought at lead fhe was excufablc in feparating herfclf from him. 

Thefe being the circumflances of the cafe, I am of opinion 
tare is not fufficient foundation to give the plaintiff the general 
flief prayed by his bill, againfl the payment of the rent-charge 
fone hundred pounds a year, but that he is intitled to be re- 
sted againfl the ejectment, on the terms hereafter mentioned ; 
id therefore do in the firfl place dire£l the Mailer to fee what 
due to Lady Moore, for the arrears of her annuity, and to tax 
t cofls at law, and upon the plaintiffs payment of what the 
after (hall certify to be due to the defendant for the arrears of 
r annuity, and the cofls at law, and continuing the growing 
yments of the faid annuity, according to the marriage fettle- 
snt, ihe injunction to be continued; but in default of payment 
Ac arrears of her annuity and colts at law, then the injuncticn 
be diflblved, and the plaintiffs bill difmiiTed with cofls to be . Q -. 
Led; and if the plaintiff fhall make default in continuing the L a 7 J 
nring payments of the annuity, then Lady Moore is to be at 
erty.jo apply to the court. And I do further order, that the 
intiff" in a fortnight's time pay to the defendant's folicitor a 
odred pounds, on account of the arrears of her annuity now 
rfi). 

(0 Reg. Lib. B. i;j6. fol. 314. - - 

T a N. B. 



*7 8 



Moon «r. 
Moots* 



'Baton attti JPeme. 

N. J?. Mr, Attorney General, after the decree was pror 
ced, faid, this was fo uncommon a cafe that probably it v 
never happen again. 

Lord Chancellor replied, If you think fo, you mult have a 
good opinion of the ladies ; for 

(In amore hac omnia infant vitia % injuri& % 
Sufpicionesy inimicitixy inducia. 
Be II urn, pax rurfattim 



Tebruary the Thomas Cecily and Mary his Wife, and Mary Juxon> ) p , . 
*7*> 1737. . the Wife of Emanuel Juxon, by her next Friend, J 

The faid Emanuel Juxon, Mofes Juxon, Thomas ? r\ r 1 
Juxon, and Samuel Juxon, J 

IN 1708, the plaintiff Mary Juxon, then Mary Eggk 
daughter of Ann Eggington, intermarried with the defer 
------ 



Cafe 148. 

S.C. cited, 3 
Burr. 1778. 
The defendant 
Emanuel Juxon 
forae few yeart 
after his mar- 
riage, left his 
wife and two 
fmall children, 



Emanuel Juxon, and had iffue a fon and two daughters, 
the daughters died an infant, and the fon in 1731, anc 
plaintiff Mary Cecil the other daughter in 1733 interm; 
with the plaintiff Thomas. The defendant Emanuel Juxon, 
few years after the marriage with Mary Jtix:n, left her am 
fmall children, and went abroad and did not fee or fend to 
and went abroad £ or f ou fteen years ; and upon their being fo deferted, Jn> 

anddidnotfee . . ; . « 1 i_ 1 • tl- a5 .-v • t_ 

gtnton, in 17 14, intruded the plaintiff Mary Juxon with a 
of goods, proper for the bufinefs of a milliner and broker 
permitted her to take the profits thereof to maintain herfel 
children. In 1720, Ann Egginton being of a great age, < 
bill of fale, in confideration that her fon Richard Eggirtoi 
undertaken to provide for her during her life, fell to hin 
executors, &V. the goods, chattels, and pcrfoiial eftate tl 
Tr!d n uldren'o't mentioneJ > ancl defired him to be affifting to the plaintiff 
of the profits. Juxon, by lending her, as fhe had done, fuch of the goods 
The hufband tip- fhould have occafion for, to fupport hcrfelf and children. A 
breaks 'oVn the anotner bil1 of fvl,e m 1 1 2 *> ^ nTl Egginton conveyed to the 



her or them in 
fourteen yeart; 
the wife's mo- 
ther during this 
time intruded 
her with mili- 
nery and other 
goods, and per- 
mitted her to 



tiff, Mary Cecil \ the refidue of her goods and chattels, hoi 
fluff, and all other her fubftance whatsoever, to her own j 
ufe. Ann Egginton foon after died. 



wife's houfe, 

and tikes away 

all her goods and 

produce of the 

flock fo lent as 

afore faid. The bill therefore {inter alia) brought for the re-delivcry of the good?. What the > 

acquired in her hulband's abfence to fubfiil herfelf and family, i* her fe par ate property, and n 

to the difpofition of the hufband ; and what he has forcibly taken, he mult deliver in fpecic, »u 

pofed of, mud pay her the value fet by the Mailer. 

£ 279 ] In 1725, the plaintiff Mary Jux$n, who had been coni 

affifted by her daughter the plaintiff Mary Cecily did by \ 
parate trade, and intirely out of the ftock fo lent, fave the i 
twenty pounds, which fhe intended to place out at intere 
This fum the defendants Mofes, Thomas and Samuel Jux 
fired they might have on their bond, and (he confentingj 
executed a bond, and gave the fame to her, and fhe after 
Advanced to the faid defendants another twenty pounds, an 



■Baton atrtijFeme; a 79 

javc her a note for the fame : Mary Juxon never read either the Cicu v, 
>ou<l or note, and it appeared that the faid defendants had made J*"*- 
he bond and note payable to the defendant Emanuel Juxon, and 
to mention or notice taken that the money was the property of 
\Iary Juxon. 

The defendant .Emanuel Juxon, upon his return to England, 
roke open the door of the wife's houfe, and took away the 
;oods that belonged to Thomas and Mary Cecil, and alfo the 
cry goods and the produce of the (lock which had been lent by 
inn Egginton to the plaintiff Mary Juxon, and were comprized 
n the faid bill of fale. 

Therefore the bill is brought, among other things, for the 
principal and intereft of the bond an$ note, and for the re-deli- 
very of the goods, which the defendant Emanuel Juxon had for- 
cibly taken away, and that his wife the plaintiff Mary Juxon 
may be quieted in the pofleffion of what (he had acquired by 
trade, during the abfence of her hufband. 

"The defendant Emanuel Juxon infilled, that in her dealings 
file made ufe of his name and credit, and that though he was 
out of the kingdom, yet the plaintiff Mary Juxon knew where 
le was ( i ), and notwithstanding they lived Separately, yet it 
was no feparation by agreement, and therefore he being liable 
to be arretted for the debts contra£led by her in trade, was intit- 
Jed to the profits and produce of the trade. 

Sir Jofeph Jehyll was of opinion, as the defertion of the de- 
fendant Emanuel Juxon was fully proved, this court would look 
upon any thing acquired by the wife in his abfence, to fubfift 
hcrfelf and family, as her feparate property, and not liable to 
the difpofition of the hufband, when he mould pleafe to come 
korne and plunder her, and therefore declared that the plaintiff 
Jfary Juxon is intitled to the goods that were in her poffeflion, 
ind alfo to the (lock in her feparate trade, before the fame 
*cre taken away by the defendant Emanuel Juxon, for her 
ftparate ufe, and that (he is alfo intitled to the bond and note, 
and therefore ordered it to be referred to a Mafter to fee what 
was due for principal and intereft, and that the fame be paid to 
&e plaintiff Juxon for her feparate ufe, and to fee what goods 
and (lock in trade were taken away, and the defendant Emanuel 
Juxon to deliver the fame in fpecie, to plaintiff Cecil and his 
*ife, in trufl for the plaintiff Juxon, and if the goods are dif- 
pofed of, the Mafter to put a value on them, and the defendant 
Emanuel Juxon to pay the value in the fame manner. ' No colls 
rf cither fide (2). 

(1) That he ufed to fend her money, (2) Reg. Lib. A. 1737. foI# 701* 
**d fbmetimes came to fee and Hay 
with her. 

Tj 



is<* 'Baron ant) -feme. 

(FJ Rule as to a PoJJlUlity of the Wife, 

?%**"*' Grey v. Kentijb. 

Cafe 1 49. AARON Wood gives by his will the moiety that he was 
Where a parti- tiAeA to °f General Wood's eftate, to Elizabeth Clark fir 

cular aflignee life, and then to Elizabeth Kenti/b for life, and afterwards 

took wi:h no- equally divided among fuch of the children of Elizabeth Kt 

tice. of an equity ^ n ' . . . .. . °. . _ 

in a wife, and as ihould be living at her deceafe. 

the aflignees un- 
der a commiflion of bankruptcy again ft the hufband, take fubject to the fame equity, the court 
fa her property, will decree it to be transferred to her (1). 

tpc*. * -*"*'* y 7 Thj s wa8 afterwards, by a decree of the court of Chan 
jZ^euS - '"/' directed to be laid out in Soutl^fea annuities, and the in 

— ■ ~" thereof to be paid to Elizabeth Clarke for life, and afte 

^^eL.*. <&si? • death to Elizabeth Kenti/h for life, and after her death t 



^^^J^- chl i^ ren / 



/fT*. " ~ The hufband of Elizabeth Kenti/h (2) afligns this legacy t< 

l**42*0>.*y&*^' ! **'J}arret 9 for fecuring 150/. upon a contingency mentioned i 
Jt^y^y/ / deed of aflignment, which alfo recites the decree. 
^^ — \ The hufband afterwards becomes a bankrupt, and the 



lingency upon which the wife was to take not having hapj 
&jj&€<$ ' <£*£*• at ^ e ^ me °^ ^ ie bankruptcy, Barret waived his affigni 
^p & r^ and chofe to come in as a general creditor, and afligned 
^^^r-^w^^^the legacy to the aflignees under the commiflion of bankr 
JP/U/xXs J**- againft Kenti/h. 

The petitioner (one of the children of Elizabeth Kentijhy 

is now dead) prays the Soutb-fea annuities may be t 

ferrcd to her, fhc being intitled thereto under the will of . 

Wood. 

A hufoand cm- Lord Chancellor : A hufband cannot aflign in law a pofTi 

not in law, af- f t ] ie w if e> n0 r a poflibility of his own, but this court will 

or ihe wife,' nor withftandiiig fupport fuch an aflignment, for a valuable coi 

a poflibility of ration, though I do not know any cafe where a perfon clai 

couTw'nfa^' under a P articular a%nce, has been obliged to make fi 

port fuch aflign-provifion as is prayed here. 

mint for a valu- 
able consideration (3). 

(1) See Ex parte P Coyfegame, ante 192. wife being alive at her mother's < 
Jtwfonv. Moulfon % pojl t 2 vol. 417. ^ r 'Jp became a bankropt and di 

(2) This part of the cafe is not dated the life-time of the mother Elh 
exaclly rifbt. Elizabeth Kentifi had a Kentijb. Barrett came in as a g< 
daughter, named Elizabeth Kcntijh, who creditor under the commiflion, an 
in her mother's life-time married one figned the legacy to the aflignees. VJ 
Oijp. Crifp made no fettlemcnt on his upon Elizabeth Cri/p petitioned to 
wife, and in the life time of Elizabeth the annuities transferred to her, \ 
Kentijb the mother and without the pri- was ordered accordingly. Reg, 
vity of his wife, made the aflignment A. 1748. fol. 532. 

to Barret upon the contingency of his (3) Bates v. Dandbg, p*ft. 2 vol. 



T&aton attH JFeme. *8o 

As to aflignees under a commiflion of bankruptcy, and the S** y " % 
vifcof the bankrupt, the court has interpofed, and obliged the iNTI, *l 
affignces to make a provifion. 

What makes this cafe particular is, that there was a decree 
which ordered the money to be paid to the uflier of the court, 
and it is alfo in another refpeft particular, that his was not an 
abfoiute affignment, but in the nature of a fecurity only* and 
is now come back into the hands of the aflignees of the huf- 
band. 

What then is the equity arifing to the wife under the decree? 
It will neither let the hufband, if he remained fui juris \ or, if 
be becomes bankrupt, his aflignees touch the money unlefs they 
Srft make a provifion for the wife. 

I will put this cafe j fuppofe the hufband living and no bank- [ a8i J 
Tipt,and he had paid off the 150/. and had died, would the repre- 
cntative of the hufband have been intitled ? I am of opinion not, 
is it was in the nature of a pledge, but would have been the 
fife's by furvivorihip. 

Or if the hufband had died without redeeming the eftate of 
he wife, {he would have been intitled to have this eftate dif- 
acurcbred, and the eitate would have furvived to her. 

The particular aflignee, having taken with notice of the equity 
rfthe wife, and the aflignees under the commiflion taking it 
nbjeft to the fame equity with the particular aflignee, I am of 
opinion it is her property, and therefore fhall diredfc the South-fea 
uuiuities to be transferred to her. 

His Lordfhip made an order accordingly. 

R& title Infant j under the Divj/ion, Horn) far favoured in Equity 
Smith v. Low. 

Vide title Dower and Jointure. 

Vide title Injunction. 

Vide title Partition. 

Vide title Evidence^ Witneffes^ Proof Cotten v. Luttrel. 



CAP. XVII. 

05CIIJ8 of (iSrcOange- 

em title Bankrupt^ wider the Divifwn, Rule as to Drawers and 
Indorfori of Bills of Exchange. 

*** title Bankrupt^ under the Divifton^ Rule as to Principal and 

Faclor. 

T 4 



•si i 'Efflg of ew&ange* 



(A) Rule as to an Indorfee. 
Between the Seals after Hillary Term 1736. 

A S<~~~> •<*?*- Lahs. Hayes. 

Every iudorfor is T ORD Q:ancellor : His Lordfhip faid, there has been a 
• new drawer. J- 1 difference of opinion amongft judges, Whether a demand 
mult be made upon the drawer of a bill of exchange, to inti- 
tle an indorfee to an a£Hon, but that he was very clear in his 
own judgment, there is no occafion to make that demand, for 
he confidered every indorfor as a new drawer (1). 

L^o/u^! #It wa8 a <*i u <te ed b Y *« late Maftcr ofthc Rolls » that a tm 

utiom. in Chancery, which had been depending almoft fix years, ought 

not to be confidered as a fufficient demand of the debt, fo as to 
[•282 ] take it out of the ftatute of limitations (2). 

(1) Harry v. Perrit, 1 Soli. 133. (2) Craddoch v. Marjb, I Cha. Rip* 

Bromely v. Frazier, 1 Stra. 441. La<w» 205. Hurdret v . Calladon ibid. 214.090s. 

rence v. Jacob > ibid. 515. Heylyn v. 2 Cha. Cm. 2 1 7. anon, foft z vol. I* 

Adam/on, 2 2?*rr. 674. Sed contra f Side- Contra, anon. 1 /'erm* 73. 
botbmm v. &»//£, 1 ^/rtf. 649. CW/w v. 
Butler ) 2 S/r*. 1 087. 



CAP. XVIII. 

03111. 

(A) Bill of Peace to prevent Multiplicity of Suits. 

(B) 2?//// of Difcovery, and herein of what Things there Jball be * 

D if cover y. 

(C) Who are to be Parties to it. 

(D) Bills of Review. 

(E) Crofs Bills. 

(F) Supplemental Bills. 

(G) Bill to perpetuate Tejlimony ofWUneffes. 



nsmi * t*« 



(A) Bill of Peace to Prevent Multiplicity cf Suits. 

December the 

Mayor of Tori v. PUUngton and others. 5 rJ >> *737. 

Cafe 151. 

A Bill was brought in this court, to quiet the plaintiffs in a s.c. f oft.2voL 
right of filhery in the river Oufe y of which they claimed 3°** 
the fole filhery for a large tra£t, againft the defendants, who, as been a porteffioii 
it was fHggefted by the bill, claimed feveral rights, either as °*"a fi&cry for a 
lords of manors, or occupiers of the adjacent lands, and alfo for a J™ R ^ T ^ 
difcovery and account of the fifh they had taken. a perfon who ' 

claims a fole 
eight to it, may bring a bill to be quieted in the pofTeflion, though he has not eftabli/hed his rijht at 
law, and it is no objection upon a demurrer to fuch bill that the defendants, have diftinft rights, for 
upon an ifluc to try the general right, they may at law take advantage of their feveral exemptions, and 

The defendants demurred to the bill, as beinp: a matter co£-/^v ^ ^y 
sizable only at law. b ^~^^r. 

Lard Chancellor'. Such a bill againft fo many feveral trefpaf- f </5+*>f** ^ 
fcrs is improper before a trial at law, a bill may be brought }< / ,^& y^Jtz* 
againft tenants by a lord of a manor for incroachments, &V. or aj c- , /.#- 
by tenants againft a lord of a manor as a difturber, to be quieted ___ * 
in the enjoyment of their common ; and as in thefe cafes there 
4s one general right to be eftablifhed againft all, it is a proper r 283 J 
bill, nor is it neceflary all the commoners mould be parties (1) ; 
fo likewife a bill may be brought by a parfon for tythes againft 
parifhioners(2), or by parifhioners toeftablifh a modus, for there 
is a general right and privity between them and confequently it 
is proper to inftitute a fuit of this kind (3). 

There is no privity at all in the cafe, but fo many diftindT: 
trefpaflers in this feparate filhery •, befides the defendants may 
claim a right of a different nature, fome by prefcription, others 
by particular grants, and an injunction here would not quiet the 
pofTeflion, for other perfons, not parties to this bill, may like- 
wife claim a right of fifhing. 

It is more necefTary too in this cafe, there mould be a trial at 
law, for it does not clearly appear, whether there is a right even 
in the plaintiffs (4), and if it fhould eventually come out that 
the corporation of Tork are lords of this fifliery, then would be 
the proper time to have an injunction to prevent their being 
difturbed in their pofTeflion. His Lordfhip therefore allowed 
the demurrer. 

This demurrer was fet down to be re-argued on the 13 th of 
March I737> when, in fupport of it, it was urged, that though 

/i) ViJe Rudgev. Hopkins, zEq.Ab. iflue to afcertain boundaries between 

170. pi* 27. Foore v.Clark, poft.zvoX. two parifhes. Parijb of St. Luke v. 

51 5. Parijb of St. Leonard, I Bro. Cba. 

(2) Brown v. Vcrmuden % 1 Cba. Ca. Re/. 40. 

%J%. (4) Vldg Cnffctt v. Mjtton, 3 Bro. 

(3) A Bill will not lie to direft an Cba. R<?. 481. 

it 



*33 MI* 

H^rof Vp«K ; t ; 8 charged In the bill, that this bill is to prevent multiplicity 
vow. " °^ ft" ts » )' rt t ' iat was never allowed in this court, where the de- 
fendants have all different titles, and depend vipon various matters 
and rights, and is not like* the cafe of lords and tenants, or par- 
"^^ fons and parifliioners, nor properly under the rule of bills oi 

peace, for no other party who has a title or right of the fame 
nature, could be bound by this bill : the plaintiffs fay, thty 
have a prescriptive right, this being a publick royal river, the 
# defendants, being lords of manors, may have the fame right, or 

for the fame reafon they cannot prefcribe for that, unlets for fome 
confideration paid. 

Mr. Attorney-General e contra. The defendants never at- 
tempted to fct up this exclufive privilege till now, but have at 
ways applied for leave to the plaintiffs; the defendants are 
owners of lands and lords of manors adjoining to this river, and 
it may properly be determined, whether the plaintiffs have that 
fole and fcparate right of filhery, and that is incumbent on the 
plaintiffs to prove ; fuch bills have been brought by the city of 
London for fome certain duties, and though a great many parti- 
cular rights have been infifted on, yet a general iffue has been 
dire&ed to try the right. In the cafe of v. Carter, 

1734, a bill was brought by the lord of the manor of Stepney 
* for fixpence on every load of hay carrried to Whittchapelj though 

•* the lord, houfe-keepers, , and fcavengers claimed each fome 

right in the fixpence, yet one general iffue was directed by lord 
Talbot to try that queftion, and the demurrer in that cafe wai 
over-ruled. 

Lord Chancellor : When this cafe was firft argued, I was of 
opinion to allow the demurrer, but I have now changed my 
opinion. 
T 18J. 1 ^ crc arc two cau ^ cs °^ demurrer, one afligned originally, and 

■> * * one now at the bar, that this is not a proper bill, as it claims* 
fole right of filhery againft five lords of manors, becaufe they 
ought to be confidered as diftinft trefpaffcrs, and that there i* 
no general right that can be eftablifhed againft them, nor any 
privity between the plaintiffs and them. 

In this refpeft it does differ from cafes that have been cited 
of lords and tenants, parfons and parifliioners, where there i* 
one general right, aNd a privity between the parties. But there 
are cafes where bills of peace have been brought, though there 
has been a general right claimed by the plaintiff, and yet no pri- 
vity between the plaintiffs and defendants, nor any general right 
on the part of the defendants, and where many more might be 
concerned than thofe brought before the court : fuch arc biU» 
for duties, as in the cafe of the city of London v. Perkins (i)^ 
the Houfe of Lords, where the city of London brought ot&f 
a few perfons before the court, who dealt in thofe thing* 
whereof the duty was claimed, to eftablifh a right to it, afld 
yet all the king's fubje&s may be concerned in this right 5 brt- 
becaufe a great number of actions may be brought, the court 
ftiffers fuch bills, though the defendants might make diftin& 

defence* 

{\) 4Brt.P«r.Ca.'v^ 



•Bfll. 384 

md though there was no privity between them and Major of Yo»* 

' *. PlLKIM* 



TM% 



herefore this bill is proper, and the more fo, becaufe 
here are no other perfons but the defendants who fct 
m againft: the plaintiffs, and it is no objection that 
feparate defences ; but the queftion is, whether the 
ive a general right to the fole fifhery, which extends 
efendants ; for notwithftanding the general right is 
Itabliflied, the defendants may take advantage of their 
nptions, or diftinct rights. 

caufe of demurrer is, that the plaintiffs have not 
their title at law, and have therefore brought their 
srly to be quieted in pofleflion. Now it is a general 
man (hall not come in to a court of equity to eitablifli 
t, unlefs he has tried his title at law, if he can (1)5 
lot fo general an objection as always to prevail, for 
3een variety of cafes both ways, 
e two cafes reported together in Prec. in Eq. 530. 
7ern y and the Duke of Dorfet v. Serjeant Girdler {a)\ (a)*2q. Alft 
cr it was held, that a man who has been in pofief- i8x.pl.3.c* 
tcr-courfe (ixty years, may bring a bill to be quieted 
:flion, although he had not eftablifhed his right at 
1 latter, that a man who is in pofleflion of a fifhery, 
a bill to examine his witnefles in perpetuam ret me- 
1 eftablifh his right, though he has not recovered in 
»f it at law ; otherwife, if he is interrupted and dif» 
•r then he had his remedy at law. 
:fent cafe the demurrer was over-ruled (2). 

ion. 1 Fem. 120. Eafi India 414. Welltry. Smeaton I Bro. Cb*. Rep* 

tandys, ibid. 127. Pazukt v. 572. 

308. Eaft India Company v. (2) See the difference between this 

Cba. Ca. 165. Whitchurch cafe and that of Lord Teynham v. Ha* 

. 2 vol. 391. Lord Teynham kert,poJI. 2 vol. 4S3. 

f l. 2 vol . 483. anon. 2 Vef. 

C 285 3 

Others, - ■ i Plaintiffs. ,_ r . _ 

i\ ovtmbcr XhA 

venny and Others, — — — - Defendants x6th « J 73*. 

Cafe 152. 
n by the plaintiff" for an injunction to ftay the pro- A bill of peace 
igs of the defendants at law till the hearing of the /„™S?on to'Sr 
; court, upon a fuggeftion that thi3 is a bill of peace, the defendanta, 
avourcd in equity, for the principal prayer of it is, who ^ avc «»«• 
ndant* who have only a fmall mterelt in that part of not of runbridgt^ 
f Tunbridge, whrch is in difpute, may accept of fucli from proceeding 
on as this court (hall think reafonable, for the houfes ?, tla * .^^V 

- . ., in the plaintiffs Ibr 

has built upon the waite. building boufo* 

on the manof 
A that they ma/ accept of fuch a compeniation aa tht court dull think reasonable. 

Lord 



CoNTiii 9. Lord Chancellor : I do not fee how this court can af 

^wwy. A " a power, unlefs they had a right of being applied to 

Me court dif-"~ bitrator, or had a legiflative authority lodged in t 

roWedthein- ther of which belong to them; for they a£l only in 

cannot be applU Capacity. 

cdto as anarbirator, nor have any legifladre authority, butaft in a judicial capacity. 

Abillofpeacr The proper bill of peace was a former one, broug 

brougUt^tc! tcnants °f ^is manor, for fuch a bill may as well b 

nana againft a by tenants againft a lord, as by a lord againft tenants 

lord, as by a lord that bill was difmified, upon the fuggeftion of this vei 

eoan j.j r# Conyers himfelf, that they ought regularly to procc 

and therefore thither let him go, and not apply impr 

relief in that court, which he had abfolutely infiftec 

power of relieving. This comes very near the cafe oi 

for he has chofen to proceed at law, and therefore lei 

his remedy there. 

His Lordfliip for thefe reafons ordered the injunttio 
difiblved. 

(0 See the Mayer of York v. Pitting- bert 9 poll. 2 vol. 483. notes. 
ten, ante 282. Lord Teynbam v. Her- 



(li) Bills of D;fcovcry> and herein of what Tilings thci 

a Difcovery* 

February the Phipps v. Steward (1). 

S*h, 1737. 

Cafe 153. Q IR Robert Cowan, intending to leave England, 
*>* to the plaintiff he had made his will, and that af 
his pcrfonal eitnte to his daughter and the heirs of her 
had limited the fame to the plaintiff. 

(1) Sir£. Convan refided at Bombay, ant married the fitter, and aj 

and being about to fail for England made letters of adminitlration ibr her 

his will dated the 4th of January 1734, feffed himfelf of the books, p 

and thereby directed hit perfonal eftate part of the pcrfonal eltate of 

to be laid out in the purchafe of lands tor. Pending the fuit in the t 

to be fettled to the ufe of his brother in tal court, the plaintiffs brou 

tail, remainder to his filler in tail, re- bill for an account of the perfoi 

mainder to the plaintiffs in fee ; and in and to have the fame laid out ir 

cafe of his brother's death he directed annuities until the fame could b 

that his pcrfonal eftate mould be remit* in the purchafe of lands. To 

ted to the plaintiffs for the purpofes the defendant demurred; which 

aforefaid. Sir R. Cewsn before his death was overruled. The defenda 

in 1736, told the defendant Steward, reft rained from receiving or j 

that he had made his will, but had left any part of the faid tellator's 

it at Bombay* and had only a copy of it eftate till further order. Reg 

with him. The brother died in the Eafl 1737.^. 1 36. 
Indies. After the tellator's death, Stew- 



■Bill. a86 

Some time after Sir Robert Cowan died, the daughter mar- g "iwa*I! 
ricd the defendant, and upon a fuppofition that there was no Wh . . 

will, adminiftration was applied for by the daughter in the depending in the 
fpiritual court ; pending a fuit there, the prefent bill was ecclefiaftical 
brought by the plaintiffs to have an account of the perfonal ^? ft ^™ **- 

.tlhtC. bill may be 

brought here for 
u account of the perfonal eftate. The reafon why a bill is allowed to be brought before probate is, 
that the eccleliaftical court have no way of fee u ring the effects in the mean time. 

To this bill the defendant demurred, for that there was a Adevifeofper- 
fuit now depending in the fpiritual court for adminiftration to the J^" an 5 the* fain 
perfonal eftate of Sir Robert Cowan. of her body, U 

herd Chancellor over-ruled the demurrer ; and faid, in the cafe ^J 8 ncvtT , bcca 
tifPowis v. Andrews, a bill of this nature was allowed before m j ne d! th at '" 
probate, and that determination was founded on a former cafe of where money it 
Japbet Crooke, in the time of Lord Harcourt, relating to the will wh e n lc ai ^ g ^° 

Of Mr. Hawkins (a). tothefirfttaktr, 

(a) i Vern. 106. 
Wright v. Blick, and 2 Vcrn. 43. Dulwich College */. Jackfon ( 1). 

The reafon for thefe cafes is, that the ecclefiaftical court have 
no way of fecuring the eflVcls in the mean time, nor did he 
bow there was any folemn refolution, where money is entailed 
in the manner the teftator has done here, that the whole of it 
ftall go to the firft taker (2). The cafe of Colvel v. Shadwell in 
the time of Lord Cowper is to the contrary (3). 

His Lordfhip reftrained the defendants from receiving any 
more of Sir Robert Cowan's perfonal eftate till further order. 

(1) Andrews v. Powis, 2 Bro. Par. 154 . Daw v. Pitt, Fearae 34^. /vie 
Ca.476. Morgan v. Harris, 2 Bro. C ha. v. I vie, poll. 429. Saltern v. Saltern, 
fc*p. 121. See Montgomery v. Clarke, poft. 2 vol. 376. Stratton v. Payne, 
poft. 2 vol. 378. Smith v. My well, poft. 3 Bro. Par. Ca. 527. Earl 0/ Chatham 
3*ol. 566. v. To/bill, 6 Bro. Par. Ca. 450. Hodge/on 

(2) Fide Stale v. Semle, l P. W. 290. v. Bujfty, poft. 2 vol. 89. note 1. 
bd v. Diekenfon, 8 Vin. 451. pi. 25. (3) I P. IV. 470. 485. 
**ttafield v. Butterfcld, 1 Vef. 133. 

Woodcock v. King* Jwy th* 

»3d, 1738. 

IT was in this cafe laid down by Lord Chancellor a3 a general Cafe 154. 
rule, that where a bill is brought for a difcovery merely, fo hc ? f abiait 
M prays no relief, you cannot move to difmifs it for want meAiyoW* 
°« profceution, but can only pray an order upon the plaintiff cannot move to 



J> pay to the defendant the cofts of fuit to be taxed by a difmif y tfor r 

|| t ft ' f . ' want of profe- 

m * aK ^ [*)• cution, but pra 

an order only on the plaintiff to pay defendant the cofts of 

(0 See anon. poll. 2 vol, 15. Jones v. Jones, poft. 3 vol. 1 1 1 



**7 %m. 

TAnsry&f±//Z^ -*> y^fi-f r **~ Atlins V. Farr* 



Cafe 155. HP HE plaintiff in the original bill, and daughter of ik 
S.C. zEq.Ca. «*• prefent plaintiff did thereby charge, that being a fingic 
*br.247. pi. woman, (he became acquainted with the defendant, who made 
V'v'm Abr ^ S ac ^ re1 ^ es to ^ cr ty way of courtfhip, and for marriage, and 
^96.' pi. 3/" me confented thereto ; and that on the 9th of February 1732, he 
The defendant voluntarily executed to her a bond in the penalty of ioooA on 
Ai U p"!antiff S » V0 condition that if the defendant did not marry her within a twelve 
fcond in the pe- month after date, he would pay her 500/* 

molly of 1 000/ on 

condition that if he did not marry her within a twelvemonth after date he would pay her 500/. SooW- 
fur, undtr pretence of reading it, he took it again ft her confent, and carried it away with him. The bill 
brought for the delivery of the old bond, or, if cancelled, that he may execute a new one. ThtpfauH 
tiff in the original bill dying inteltate, the mother, as adminiftratrix, and thereby intkled to the 500/^ 
arrived again ft the defendant. The phi n tiff, as the bond was gone by the default of the defendant, it 
therefore intitled not only to a difcovery here, but relief by payment of the money, and the dffrinto 1 * 
■greed to pay what is due fur the principal fum of 500 /. in the condition of the bond, with iotcrtt 
ftac the lame at the rate of 4 fxr cent, from the day of filing the original bill (1). 

On the 17th of March following paying her a vifit, and fay-" 
ing he was defirous to read the bond, fhe fetched it him, and 
at the defendant's requcft gave it him to read, who took it, and ; 
again It her confent put it into his pocket, and immediately vent 1 
away with it ; but coming to her again the next day, fhe infilled 
on the bond, but he pretended he had burnt it, and would exe- 
cute another bond of the like purport, and defired her to get it 
drawn. She accordingly applied to the perfon who drew the 
former bond, and he in purfuance of the defendant's direflioni 
ingrafted a new bond to the fame effect with the other, and the 
defendant promifed to execute the fame, but afterwards abfo- • 
lutely refufed to do it. And (lie therefore by her bill prayed rhat 
the defendant might be decreed, if he hud* not cancelled the bond, 
to deliver the fame again, and in cafe he had deftroyed it, then 
to execute a bond of the like tenor. 

The defendant, by his aufwcr to the original bill, admitted 
that in 1732 he became acquainted with Mary Atkins % but that 
flic was then, and before, a woman of very bad fame and cha- 
racter ; and had been an orange girl in the playhoufe, and that 
he never made any addreffes to her, except fuch as are ufuallf 
made to women of ill character, and that during his acquaint- 
ance with her he did .execute a bond conditioned for a marriage 
within twelve months, but, when he executed it, apprehended 
it would not be of any validity againft him ; and that about tw*o 
months after, the execution of the bond, fomc difference arififlg 
between them, ihe of her own accord delivered him the bondU 
telling him at the fame time ihe had a gentleman would do bcttC* 
for her, and that he then put the bond into his pocket, and tb^* 
flic did not within 1 2 twelve months after her giving up the bbt** 
inquire after, or afk for the fame, till the demand fet up by h^& 

(l) See Wcudhouft v . Sbtplcy, poft. 2 vol. 535. Kay v. Bratl/haw, 2 Vera. 10 

1 



O&ffl- all 

and that he never promifed to give her any bond of the like Atctht. 
Ek f or ever gave dire&ions for any other to be drawn, and **•*• 
is, as (he delivered it up voluntarily, that he ought not tube 
iged to execute any other bond. 

The plaintiff in the original bill dying inteftate, and the mo* 
r having taken out adminiftration, and thereby become in* 
d to the 500/. due from the defendant by his bond, brought 
bill of revivor againft him. 

lord Chancellor : The plaintiff in the original bill had cer- 
ily an equity founded on the bond's being gone by the default 
the defendant, on which flie might have had her remedy at 
t and therefore was intkled not only to a difcovery, but relief 
die payment of the money 5 and though the proof of the 
if s being forced from her is by one witnefs only, it is 
obje£Hon in this cafe, for the plaintiff herfelf was intitled . 
nake oath of the lo& of the bond, and that it was thus taken 
a her ; and as this fa& is proved by the oath of one witnefs 
inft the oath of die defendant in his anfwer, and as there is 
wife proof of the defendant's offering to execute a new bond, 
: is a circumftance fupporting the evidence of this Gngle wit- 
i» fufficient to take it out of the general rule ; nor are there 
collateral circumftauces to bar her, for no other averment 
; neceffiuy to be made at law, if (he had the bond, than 
: the money was not paid ; and as (he has by the defendant's 
t loft the bond ; (he has fufficicntly averred it in her bill ; 
was there a neceflity that the promife fliould have been re- 
ocal in this cafe, or any occafion for the court to relieve 
aft. the penalty of the bond, becaufe it is not infilled on by 
original bill, which is brought merely for the five hundred 
nds, which mud be confidered as the ftated damages between 
plaintiff and defendant. 

lis Lordfliip therefore ordered that it be referred to a Mailer 
ompute what is due for the principal furn of 500/. men* 
cd in the condition of the bond, with intereft for the fame 
a the day of filing the original bill, at the rate of 4 per cent. 
<mn. And decreed the defendant to pay what (hall be fo 
ad due to the plaintiff, and alfo the cods of this fuit ( 1 ). 

1) Ay. Ub.4. 173!. fol. 310. See of W-Jbomje r. Sbepley, p$J. % vol. 
difference between this cafe and that 559. 



«• and Others, » ■■ , Plaintiffs. *««*» *« 

*4&, 173*. 
\p 9B& Bafguy, ■ ■ ■ Defendants* 

*IJE defendant had inftituted a fuit in the ecdefiadical Cafe j$6 m y 

court, for a church rate, to which there was a cuftom SVln.AW.337, 
fcd <jf fomething done in lieu of the rat?, and that plea ft.* £?• 
ittriL l*****?*'- 

*■"*!• 7l.pl-11.1d. 

_ ' 6»y. pi. i . S. C. 

BHBt win aoc admit a Bill of difcovery in aid of the forlfajffioq of tht fT^^Hnd cowrt^ frrtitii 
M» eatable tf fooiaf at tfcrt diicoytrjr themfclyet. 

T y &* 



088 rdm 

Duku t. And now a bill is brought here for an injunction to flay iht 

Coajm* defendant's proceedings in the ecclefiaftical court, and to be re. 
lieyed againft the rates, and to compel a difcovery from the <fe- 
£ **9 ] f cru *ant Balguy of die value of the refpedHve real and pcrfc>Jial 
*&„*+„+£=** cftates of the fevcral inhabitants of the feveral pariQies and places 
£^ in the bill njentioned, and how the money collefted by means of 

/Os/Vy the faid rates had been difpofed of. 

j/Jfe./f*' The defendants demurred to fo much of the bill as fought to 

_. - ftay the proceedings in the ecclefiaftical court by injunction, and 

alfo as tp the difcovery prayed thereby, as the matters contained 
in fuch part of the bill a3 they demurred to, were properly cog- 
nizable \n the ecclefiaftical court ; and, if true, ought to have 
been infifted on there, or at common law, and was not a prope* 
foundation for a bill in this court, 
wfcere there St Lord Chancellor : This court will not admit a bill of difcoveTj 
a cuftojm pieided i n a id of the jurifdi&ion of the ecclefiaftical court becaufe the} 
r^de^Vicaa 11 * zxe ca pablc 0I " coming at that difcovery themfelves. 
court for a If there is a fuit inftituted in the ecclefiaftical court for * 

tk? Z \ nt tl " d cnurcn ,atc * am * a cu ^ om pleaded of a certain fum in lieu of A** 
ted, P they may" rate « or fome thing done in the room of it, and that plea a. **• 
proceed to try mitted, they may proceed to try that cuftom in the fame manm^r 
the cuftoin; but a, a modus; but if the cuftom is denied, it would be a propter 

if denied, *tls a . r i_m • • • •••/•« . * ■ * 

ground for a pro- ground for a prohibition, propter (rtattoms affectum in curia eccle/J' 
iibiiba. a/lica, for the trying of the cuftom is the province of the common 

law (i). 

His Lordfiiip was of opinion it was a good demurrer, and 

therefore ordered that the fame do ftand and be allowed (2). 



/ 



(1) Jlnon? 2 l'ef*4$U (2) Reg. Lib. A. 173L fol. 49. 
Hilary Term, 1747. 



Cafe 157. Boden and others, AfEgnees of Bellow a Bankrupt, r. DeUn*- 

and others. 

whew a bin i$ ryry H E aflignces fufpe&ing the bankrupt had made conceals 
^oVcr/oVcon- X mcnt » examined a great many of his relations at Guildhall 
ceaUnenuof a and have no w brought a bill againft the fame perfons for difco— ~ 
bankrupt's vcrv f tno f e concealments. 

win not afiow" 1 * Mr. Green moved on the part of the defendants, that the"^ 
the defendants to might be allowed to look into their depofitions before the com* - ' 
^tft^kca miffioners, in order to make their anfwers confident. ^ 

by FO the°co'om'rf- Lord Chancellor : I will not grant the motion ( I ) for as troth £ ^ 
fibers before always uppermoft, they may, if they pleafe, put in an anfwe^t 
snfwcr" " " con ^^ cnt Wltn wnat tncv have already fworn in their depofition *» 
fuppofing they are true ; if falfe, they fwore, at their own periA 

(i) The defendants prayed to be at anfwer*. Ordered, that the faid defeat * 

I i berry to take copies of the depofitions ants have a month's farther time to p^f 

in ordtr to put in their infwen, and for in their anfwers to plaintiff's bill. 9 * 

a month's lurcher fime to pi|C in their Lib. J. 17^7. fol. 167. 



TOT. 12 9 

11 not give leave to fee them, merely for their own fecn- Bodin v. 
l they fhould not fwear differently in one, from what D " L0W - 
I done in the other. 

(C) Who are to be Parties to it. [ 290 J 

Herring v. Toe. Fdruarythm 

8th, 1737. 

image fettlement having been made of certain lands Cafe 158. 
1 the hufband for life, remainder to the wife for life, A hufbaud te- 
ers remainders over; the prefent bill was brought by n»»t for life, 
and in order to have the opinion of the court -whether wto forUfc, 1 ^ 
parcel of land was not intended to be included in that brings a bill 

nt # alone for che 

was an obje&ion taken at the hearing of the caufe, that coupon die 
was not made a party. fettLmentj ofc- 

Chancellor allowed theobjeaion, for he faid if the court {jt^dS* 
5 of opinion againft the hufband, fuch decree would not wife a party aU 
wife ; his Lordfliip therefore ordered the caufe to ftand low,d ' 
at the wife might be made a party ( 1 ). 

(1) Reg. Lib. J. *737-M «9 8 « 

(D) Bills of Review. 

June the 29th, 1738. At Lincoln's -Inn Hall. 

Catterall v. Purchafe. 

:aufethat came before the court upon a bill of review to Cafe 150. 
fome charges out of the original bill, the plaintiff oftt red On arguing a 
fome errors in the decree. To this it was objected, that demurrer to a 
rs in the decree were cognizable, but what appeared on w h a ^ r pe£7oa 
of the decree, and therefore any evidence of errors but thefaccofthe 
s decree itfelf was oppofed. dccrcc can ^ . 

Cbancflfor : It is true, on arguing a demurrer to a bill of afrcrTdcmurrer 
nothing can be read but what appears on the face of the ov« rulrd, a 
but after the demurrer is over -ruled the plaintiff's are P laia::if m *Y 
y to read bill or anfwer, or any other evidence as at are- ^ QLt asatarc- 
► the caufe being now equally open ; to which purpofe heuiiug. 
of Jack/on v. Francis was cited by Mr. Brown. 

(E) Crofs Bills. f 2gl -j 

Crefwkh v. Crtfiv : .ck. J^ry-i. 

11th, 2738. 

fc in this cafe laid down by Lord Chancellor as a general p. H - e ^ 

» that where the defendant in a crofs bill, who is plaiiuiif „ ~* 
» . . . r _ V Wh-re a de- 

ntinal, is m contempt for not putting in an aulwcr to frnJantin A crof» 

... bill, but plaintift" 

M» iaiacostempt for net putting :n an anfwer, the proper motion U tqinjarg: publication 
ailftft* ftrtfijfht after the a.;lwtr is com: in to the c\,l* UU. 



y £k* 



~ >#^>s^v^ /. 




«^> 



Creswick*. the crofs bill, it is irregular to move to ftay proceedin 
Ckkswick. or igi na i caufe, till fuch anfwer conies in, but the plaim 
crofs bill, may have publication in the original inlarged 
night after the anfwer to his bill is come in (i). 

(i) Ramkijfen/eat v. Barker, ante 21. Aykt v. EaJ), 2 V 



March the 19th 
1736. 

Cafe 161. 

It it a con ft ant 
mle, that mat- 
ters fubfequent 
to the original 
hill, muft come 
hy way of fup- 
plemental bill 
and^emor (1) . 



u*f**. 



4ty 



&~i~ 



U 






(F) Supplemental Bills. 
Brown v. Rigden. 

AN original bill was brought by a creditor againft 1 
den as adminiftratrix of A. who being a marric< 
her hufband was alfo made a party. 

Before the caufe was heard the wife dies, and the 
took out adminiftration de bonis non 9 bfc. of A. upon * 
plaintiff amended his bill againft the hufband, to which 
bill the defendant demurred. For any matter which hi 
fcquent to the original bill, cannot be put into an amended i 
bill of revivor and fupplemental bill ought to be brough 

Mr. Verney for the plaintiff infilled that in equit 
abated only againft the wife, and cited the cafe of Hu 
Humphreys , 3 Wms. 349. there the bill charged, b 
amendment, matters which arofe after filing of the 
therefore feemed a proper cafe for a fupplemental bill, 
this was pleaded to the bill, yet the plea was over-rule< 
fuch matters may be charged either by way of fupplen 
by way of amended bill. 

Lcrd Chancellor : I am of opinion that the demurre 
be allowed (2) •, for I take it to be the conftant rule, tl 
fubfequent to the original bill, muft come by way off 
tal bill and revivor : befides the fuit abated intirely by 
of the wife ; for the hufband who was before joined f 
mity only, has an intereft now, and tho' by the ftati 
8 Will. 3. a fuit (hail not abate upon the death of one < 
but fhall go on againft the others, yet it muft be taker 
reftri&ion; provided, the fubjeft matter of the bill I 
by the death of fuch defendant. 

(1) See Jcncs v. Jones, poll. 3 vol. (2) Reg. Lib. A. 1736. fo 



Though by the 
8 WW. 3. a fuit 
Hull not abate 
upon death of 
one defendant, 
yet it muft be 
taken with this 
rcftritlion, that 
the fubjeft m r- 
terof the bill is 
not hurt there- 
by. 



[ 292 ] 



(G) Bill to perpetuate Teflimonj of Witneffe. 

Vide title Evidence, Witne£ls 9 Prof. 

Bill. Vide title Award. 

Bill* Vide title Anfwers, P!eas y and Demur 

Bill. Vide title Amendment. 



t 9 t 



CAP. XIX. 

T&mtm aim owgitf on* 

Ram/den v. Jack/on. Mn*ry the it, 

*737- 
NNAH Ramfden having entered into a bond for the Cafe 162. 
ent of a confiderable Aim of money to die defendant at A vo) unUry * 
1, in the nature of a legatory difpofition of fo much fe- bond for tL 
bond, and the defendant having obtained judgment on JJK?* of * 
againft the plaintiff her executor, the bill was brought ^uwthTd^i 

have die bond and judgment fet afide, fuggefting there •* the obligor 
onfideration for entering into it, and that it was obtain- t'^^^Jf 
proper means* fidon it • valid 
'Chancellor : I am of opinion againft the plaintiff on the ^^ (0* 

at the bond is a good one, and therefore the only quefl 
be on what terms the plaintiff fliould be relieved againft , 
ery at law, and fome relief he is clearly intitled to, the 
: being for the whole penalty of the bond, 
e plaintiff it was infifted, that he had a right to be re* 

1 only againft the penalty, but likewife againft the prin- 
, in tne condition of the bond, or part of it at leaft, it 
gefted that there is a deficiency of perfonal aflets, and 
iff chargeable no further than ne had aflets. 

£k as to this was, that the plaintiff here pleaded non eft 
the bond at law, and had a verdid againft him, and 
in the ufual form, de bonis teftatoris t fed non de bonis 
And it was admitted the plaintiff in this refpe& (lands 
t the feme light as he would at law, and the queftion is, 
when an executor pleads non eft faclum, non affumpfit f 
rerdi& againft him, that will not amount to an admif* 
lets, or if after fuch verdi&, he may (till defend him- r * 

lenying aflets, and that matter be controverted on the *• " ** 
eturn to zfcire fieri inquiry or otherwife. 
txdkerh for the defendant infifted that the verdi& was 
Bon of aflets, and that this cafe was the fame with a 
confefled by an executor, or had againft him by de- 
I upon his memory referred to a cafe in Salteld's Rc- 
lere it had been fo ruled': He admitted the executor 
hargeable de bonis proprns in refpe£t of his falfe plea, 
faid, and it was agreed by Lord Chancellor ■, held only 
e of ne unaues executor pleaded. But that the executor 
fe having thought fit to put his defence on the denial 
tcution of the bond, and not having pleaded plene ad* 
f, or by plea admitted aflets to fuch fum, and riens 
, or made ufe of any defence of that kind, he cannot 
t to any fuch matter, or have the benefit thereof by any 
t proceeding; that executors were in this refpeSt only 

(l) Fide Drttke/ordv. fi'ilics, prjf. 3 vol. 540. 

U ? upon 



393 0501100 ann ©Wfgatfonsf. 

Ramsden y. U pon the fame foot with all other perfons, and nothing is better 
Jackson. e ltabliHied than this rule, that no advantage can ever afterwards 
be taken, of what might have been infilled on by way of de- 
fence, and pleaded to the a£Hon : Nothing pleadable puisdamen 
continuance^ which was in ejfe at the time of the plea pleaded: He 
• observed likewife that the difability a defendant at law was un* 
der, of making a double defence, gave occafion to that provifion 
in die ftatutc for the amendment of the law, the 4 Ann. c. 16. 
/, 4. with regard to pleading feveral matters ; there was no oc- 
cafion otherwife for any fuch law in the cafe of executors, nor 
^ny reafon for purfuing it now in thofe cafes, though it is every 
day's practice : For if an executor, after a verdi£fc againft him 
on fuch a plea as this or any of the like kind, may afterwards 
fay he has no aflcts ; that method of proceeding will be equally 
. beneficial to him, and there would be no occafion ever to apply 
to the court for leave to plead plene adminiflravit^ and any other 
plea. That the executor here might have applied to the court 
for leave to plead double, but not having done lb, the cafe (lands 
upon the fame foot it would have done before the aft. 

Lord Chancellor : I agree with Mr. Fazakerly, the ftatutc for 
the amendment of the law is quite out of the queftion, the name 
of the cafe hinted at by Mr. Fazakcrly, is Reck v. l^ghton^ Salt* 
31c. but on looking into that cafe, I find the refolution there, 
goes only to a judgment had againtt executors, either by coo- 
feflion ©r default ( 1 ), but no further ; that the rule is in general as 
has been laid down, that advantage cannot be taken afterwards, 
of what might have been pleaded to the adlion 5 as for in (lance, 
in the cafe of zfcire facias on a judgment, nothing can be plead- 
ed thereto, which might have been pleaded to the aftion \ tut 
though I am inclined to think the verdidt was an admifiicn of 
aflcts, yet I will not give an abi'olute opinion, becaufe the caufc 
mult be poftponed at prefent, in order that the will nny be 
produced, and the (late of the aflcts laid before die court, and 
the difpofition by the reftatrix of her real and perfonal cftatci 
* 20 4 1 the fact, whether there were aiTets or not, being difputcd by the 

chion. 

A voluntary N. B. The bond againft which the relief is prayed, being * 

kond inequity voluntary one, it was admitted clearly it mud be poftpened 

poaed to debts * n equity to dtb:s by limple contract ( 2 K and alfo that where 

©n fimpie con- a bond is claimed in coniideration of money lent, and th* 5 

cUhncd^r'mo- perfon fails in proving his confidcration, he lhail not be aV - 

ncy lent, anJ the lowed aficrwards to lec it up as a voluntary bond (b). 

pcrfon t.iiU in 

piovii.g his corfidention, ir cannot be fct up afterwards as a voluntary bond. (*) Prcc. fc J 

Cban. 17. 

(1) Sktltmv Kavlitg, 1 JVvf. 258. S. C. ibid 15a. fh 4 S. C. Crayc** 
(2/ FahbcurJ v. Bnven, 2 I'grn. AWc, Ca temp, Talb. 1 5 3. Blmai ^ 
z^z. S. C. 1 £f. Ab. i4j t pL 15. Dou?bty; f*fi. 3 vol. 483. 

W*0 



..**- 



*J5onW anti ©blfffatfow. 294 

?hi$ point coming on again, whether the plea of non eftfaftum Ramsdih v. 
litted affcts, Lord Chancellor held it did, and faid he had feen J A0JCS0N - 
d Chief Juftice Holt's report of the cafe of Rook v. Leighton^ lf ™ executor 
:re the very cafe now in queftion was put by Holt Chief Juf- j^l™£md 9 
, who faid the law was the fame as in the cafe of a judgment and not //*««</- 
lcfault againft an executor, though that is not mentioned in mu «firamtnkzm 
report of the cafe by Salkeld ( 1 ). after* venU& 

take advantage 
hat night hare been pleaded to the action. The plea of non eft fiffum only it an admifliaa 
feu, and held the lame as in cafe of a judgment by default againft an executor. 

)ccrced that the plaintiff fliould be relieved againft the penal- Can be relieved 
f the bond, on payment of principal and intereft, &c. with- £^5^2^ 
any regard had at all to the queftion, whether the executor bond, by paying 
aflets or not to pay fuch principal and intereft. principaiand in- 

E ' E * tereft, without 

regard to hit having aflets or not* 

(1) See Erving v. Peters, 3 Durn. & Eaft 685. 



Michaelmas Term, 1738, 
Bower v. Stvadlin* 

N obligee gave a releafe to one of the obligors in a bond, Cafe 163. 
„ the bill brought by the reprefentative of the obligee, and a releafe to one 
rife by a truftee under the aflignment of this bond, for the °W»g<»» is a re- 
conditioned to be paid by the bond. S^wtii* 
be defendant in fitted by way of plea, that a releafe to one co- as at law (1). 
or, is a releafe to all. 

ird Chancellor : There is no doubt but a releafe to one obli- Where there U 
s a releafe in equity to both, as well as in law ; but if there ll*® g \™uk°* 
1 aflignment of the bond in truft for the benefit of others, for others, pre- 
edent to the releafe, though the aflignment be with or with- J edc:u t0 a " - 
confidcration, it will be a material queftion, whether the ^thout con- 
§ee could releafe, or if it could operate to the releafee, as he ^deration, it 
t be prefumed to have notice of this aflignment, being him- T 1 , 1 be *»**«• 
a truftee in the amgnment, and every man is luppoied to be whether the 
ofant of a deed to which he is a party. obligee could re- 

r ' leafr, or if it 

1 operate to the releafee, as he is a truftee in the alignment. Every man is fuppofed to be 
&w of a deed, to which he is himfelf a party. 

|fc Lordfliip directed that the caufe fhould ftand over till the [ 205 ] 
sndant had anfwered to the date of the releafe ; for it does 
t appear at prcfent, whether the releafe was precedent or fub- 
Pcnt to the aflignment. 

( ! ) Shep. Touch. 335. Har. Co. Lit. W. 237. Shfc v. Huy, pod. 3 vol. 
*• *• note 1. Ex fane Smith, 1 P. 91. 

Atlins v. Farr. 181^38.' 

t 

W&kBill, under the Divifion, Bills of Difcoverj, and herein 
of what there pall be a Difcovery. 

u 3 



*9$ 

CAP. XX. 

•Bottomree TBoitW. 

SSTw? The Earl of OiefitrfitU Executor of Spencer v. jty* 

Vide title Catching Bargain. 

•^ ^ ■■ ^™"^ — ■ ■•■ ^ — ^ 

CAP. XXI. 

Canon lain. 

>wthe 9 th, Sir #""? JM^s cafe. 

1737. 

Cafe 164. T ORD Chancellor : A fuit was inftituted in the court oi 
"*-' chivalry againft Sir Henry Blount % baronet, for afiuming aid 
ufarping arms, tzfe. as his own proper arms* which neither be 
nor any of his family ought to bear. In the progrefs of tki 
caufe, an allegation was exhibited by the defendant, fettin( 
forth that all pedigrees whatfoever mull be figned by the piopc 
hands of the parties, requeuing fuch entries to be made in tb 
books belonging to the college of arms, and then objects to tb 
• validity of fome of the entries in the (aid books, as not bcxa| 
figned, and therefore no credit to be given to them 5 bat dri 
allegation was rejected by the judge of the court of Chivalry 
and the defendant petitioned the court of. Chancery, in or<k 
to obtain a com million of Delegates to determine the faid vf 
T 2 9°* 3 peal > on the other fide there is a crofs petition, infifting that n 
appeal lies but only from a definitive, or, final interlocutory <k 
cree, having the force of a definitive fentence. 

Lord Chancellor : I obferve no objection r&s been made to tb 
jurifdi&ion of the court of Chivalry, but only an appeal ftofl 
an aft of that court in their ordinary jurifdi&ion, and therefcfl 
as it is not infiftcd on, in Sir Henry Blount's petition, it mufti* 
thrown out of the cafe. 

There arc two queftions arifing upon the prefent cafe. 
Fir/i. Whether an appeal will lie from any fentence of tb* 
court of Chivalry, except a definitive one, or from fuch a Fenteafl 
as is termed in the Civil law, gravamen irreparable* 

Secondly, Whether this particular fentence of the court 
Chivalry, is a gravamen irteparabile. 
The court of ** nas keen admitted on all fides, that the court of Chivalr 

chivalry proceed proceed according to the rules of the Civil law, except in cai 
^f ordin s c ^ h ? omitted, and there they are governed by the courfe and cufta 
Jaw C ,*cxcepc \n of chivalry and arms, and it is fo laid down in 4 Co. 425, 

tafes omiti^d, 

and there they go according to the courfe and cuftora of chivalry and arm*. 

The 



Canon lafo. 296 

ath been no precedent cited in the arguing of this cafe Blount^ 

uftom or courfe of the court of Chivalry in this parti- Cafc# 

ct, therefore it mult be brought under thefe rules of 

w with regard to appeals, that is, fo far as the Civil 

en admitted in England. 

Canon law, you are admitted to appeal from all grie- Bythecanonlaw 

general, but in the Civil law only where vravamtn eft an appealis ad- 

5 ' ° J micted from all 

* grievances in ge- 

neral j but as the 
ilry is governed by the Civil law, this court will not grant a commiflion of delegates 
1 from any interlocutory order of that court, except only where there is a definitive fen- 
1 a one as is termed in the civil law, gravamen irreparabiie. 

hors upon this head are very numerous ; but to (hew 
has been allowed in England, I fhall mention only 
ixis Curia? Admiralitatis Angliay who is an author of 
credit, and very full upon this head. His Lord- 
cited feveral inftances out of the 50th and 51ft 

ules are extremely clear, and very applicable to the *• 
rpofe ; for fays the author, although the party pro- 
ceptions to witnefles, and the court of admiralty re- 
yet there can be no appeal j for in the appeal from 
ve fentence, you may equally propound the fame ex- 
lor are you precluded from it. 

the rule then of the Civil law, in the proceedings of 
>f admiralty, and founded upon very good reafon, for 
Id make caufes there unneceiTarily tedious, if appeals 
allowed upon every trifling or fuppofed grievance ; 
great weight with me in the argument, and upon 
le in the court of admiralty by both fides there is no 
:o be found of an appeal of this kind. 
Paul cited a cafe of Grundel and others, againft Gawne 

ny. 

it commenced in the court of admiralty in January [ 297 ] 

heard at the delegates in March \ 706, it was brought 
due to the plaintiffs as mariners, and prayed that the 

might fct forth, whether they were owners of the 
velly bound on a voyage from the port of London^ to 
ndies *, this libel or fummary petition was admitted, 
fendants gave in an anfwer upon oath, but infifted they 
obliged to difcover upon what voyage the (hip was 
caufe it would fubje£l them to the penalties of the 
he 1 o Will, made in favour of the Eajl India company ; 
hftanding the judge of the court of admiralty decreed, 
hould make further anfwer as to their refpeftire in- 
the fa«l fhip, and whether they were or were not 
the time in the fummary petition mentioned. From 
he defendant appealed to the delegates, who pro- 
jainftthe appeal, remitted the caufe, and condemned 
I company in cods. 

Bui 
U 4 



997 Canon lafo. 

Blount's But this differs widely from the prefent cafe, for the judge of 
the court of admiralty there had committed an error, which vat 
gravamen irreparabile 9 for if the defendant had anfwered, the 
caufe would have been at an end, for, by the confeflion they 
mud neceflarily have made, their* own anfwer would have dc- 
ftroyed them. 

In the cafe of the earl of Coventry in 1 701, againft Gregorj 
K'wgy which was in the nature of a criminal profecution, for 
having contrary to his oath, and the duty of his office, as Lath 
cq/ler herald, caufed die arms of his father to be impaled with 
falfe arms, Ufc. King gave a negativt anfwer to the libel 5 but it 
being infilled on behalf of lord Coventry^ King's anfwer (hould 
be on oath, fo far as he was obliged by law to anfwer, it was 
alledgcd by the defendant that the faid libel contained criminal 
matter, and therefore lord Coventry's petition ought not by law 
to be admitted, and prayed the fame to be rejected ; but the 
judge decreed he (hould give his anfwer on oath to fuch of the 
articles, as he was obliged by law to anfwer. Upon an ap- 
peal to the court of delegates in 1702, they allowed the appeal 
from the interlocutory order. 

This too is very wide from the prefent cafe, for if King had 
made a confeflion upon oath, the caufe would have been over}, 
and therefore it was gravamen irreparabile 9 and caimot be ufed 
as an authority for Sir Henry Blount, for his cafe depends upon 
different circum (lances. 

Then the queftion will be, Whether this decretal order be 
gravamen irreparabi/e* 

By the laws of the college of arms, all pedigrees entrcd in 
their books, mufl be figned by the parties requefting fuch en- 
tries to be made, and ail the ancient books are fo ; and it ha! 
been held, that no pedigree in law is good without it ; and the* 
Sir Henry Blount goes on, and applies this to books produced i 
his caufe. 

This is rather an allegation of a matter of law, and muft n« 
ceflarily be open, even after a definitive fentence, nor will S 
L 29*> J Henry Blount be precluded from any advantage he may mi J 
of it before the court of delegates ; all courts have a right 
enquire of their officers, what is the ufual practice of the 
courts; this is the conilant method in the King's Bench, a* 
at trials at nifi prius\ in 1 Salk. 281. it is laid down, that up< 
an appeal from a definitive fentence, the judges delegates W 
certainly admit of this very allegation or allegations to the tt 
effect. 

The prefent cafe is not near fo ftrong, as the inflances put < 
Mr. Clark in his Praxis, &c. who is clear of opinion, that 
the inilanccs he mentions no appeal would lie. 

An objection was taken in the arguing of this cafe, that tl 
Lord Chancellory upon a petition for an appeal, \s net to try tb 
merits of the caufe ; this i6 undoubtedly true, but then the Z* 1 
Chancellor mufl determine, whether an appeal will lie or ndi 
though he will not enter into the merits, or decide whether the 



Canon Halo. 498 

the court of chivalry has properly reje&ed the alle- BtewnT't 

been faid there can no great mifchief enfue, if fuch a 
>n fhould iflue out o£ the court ; but what weighs with 
making a precedent for future applications to Chan-* 
lis kind ; for it would be of mifchievous confequences 
of fuch dilatory appeals, be'caufe, as the court of admi- 
ceeds by the fame law, it would be an authority for 
of appeals horn the interlocutory orders of that court, 
d create great expence and delay, and the fuitors there 
eccffitous for the mod pait to allow of any affe&ed 

efe reafons I am clearly of opinion, that there is no 
n for Sir Henry Blount's petition, and therefore it mud 
Ted. 

Jones v. Bougett. %£**** 

I. Bougett inftituted a fuit in the eclefiaftical court, up- 5# 

>n a contracT: of marriage, againft Mrs. Ann Jubert 9 who grieved bylfor 
that fuit intermarried with the appellant ; a fentence interefted in a 
lounced in favour of the contract, a child of that mar- ^Sttcd** 
s born, and the wife was dead. court may have 

fones, who with the child was very much interefted in a commiffion of 
ence, though no party to the original fuit, petitioned ^wa^no party 
nmiflion of delegates to review the fentence on the fta- to the original 
he 25 Hen. 8. tot- 

citing feveral authorities from the canon and ecclefiafHcai 
ere perfons aggrieved by, and interefted in a fentence, 
e a commiftidi) of delegates to review, though ho parties 
riginal fuit. A commiilion was directed. 



CAP. XXII. 

Cacrfec 



[ ml 



in a m r r** February tha 

I Baxter, Affignees of Toilet, a Bankrupt, Plaintiffs, *jd» 1743. 
and others, Defendants. 

c Bankrupt, under the Divifton, Rule as to Principal and 
Fatlor. 



*99 



CAP. XXTTT. 

Cafe*. 

(A) Where they are mi/reported. 

(B) An Anomalous Cafe. 

(C) Gi/k imperfecl, or denied to be Lav;. 



(A) Where they are mi/reported. 

November the Boycot V. Cotton. 

»4th, 1738. 

P7</<f title Portion, where the Cafe gfCave v. Cave, 2 Vera. 5 

1/ mentioned. 



(B) An Anomalous Cafe. 

Vwcemhtr the 2Wo/ V. Gtf/fltf. 

sjtb, 1738. 

Vide title Portion , «;&r* /A* G7/* 0/" Jackfon v. Farrand, 2 V( 
424* 1/ mentioned. 

r ^^ t (G) Gj/J* imperfeG, or denied to be Law. 

Jsnmary the Ex parte Coyfegame. 

Vide title Bankrupt under the Divifion, Rule as to Annuities u 
Commiffons of Bankruptcy^ where the obiter Opinion in Mile 
Williams and his Wife, 1 Wms. 255. is mentioned. 

Amnjt the Ex parte King. 

14&, 1750- 

Cafe 166 T ^ wa8 ^ a ^ ^7 ^ r * " r ^ '* wa8 determined in the cafe of 
«*c<r~^ f<*rJ*2 A *• Oq/fow, 2 Fern. 286. wheTe ^. had two mortgages 1 
~£ ^ /;' different independent eftates of the mortgagor, one a de£( 

-^ ^ 7 -1 fecurity, and the other more than fufficicnt : that the moi 

cjbAi/i j/uAtcv gor mould not redeem the laft, without making good the < 
Jt. fit. ty'^ r^f^icucy of the other fecurity. 

The cafe of Lord CImncellor faid he was not fatisfied that this was 

Pop* v. On/low, eftablifhed rule of the court, and upon looking into the cafe ab 
a Vera. "£. found it very imperfect, and therefore declared he would 
ndnotcTbe ' have it cited for the future, till it had been compared with 
•cited for the fii- entry in the Regifter's office (1), and faid farther he was 
kra emmured a P* t0 believe * at ^ e tenements were parcel of and '. 
with the Regi- of the manor of Dale, and that was the reafon Lord Cowpt 
fter * determined. 

(l) The Editor has not been able to 29. Sbuttlcwrtb v. Layvoick, ilid.. 
meet with this cafe in the Kegifter's Me\ grave v. Le H^ke % i Fern. xoy.J 
book. But ktPwrefo V. Purefy, 1 Fern, ley v. Hammond, 2 Cha. C*< tfr 



30i 



cap. xxnr. *^U~~~-^# 



Catcfjlitg uargaf it. >« *e ***, 

1750. 

>rl of CbeJlerfUld and Others, Executors 1 p^j^ s B , e . Ab. 41*. 

ohn Spencer , Efq j — — J s * c * 

raham Jan/fen^ Baronet, ■ Defendant* • S. C. 

1 Wilf. 286. 
S.C. 

bancellor, 

f The two Chief Juftices, 
(led by < The Matter of the Rolls, and 

t.Mr. Juftice Burnet. Cafe 167. 

The 17th of 
IE time in the year 7738, the defendant was applied May 17 8, de- 
by Mr. Bachwell on Behalf of Mr. Spencer, to advance fc n ^ c ^ 
i Mr. Spencer 5000/. in confideration of which he would «r,andthefcme 
1 defendant a fecurity to pay him 10,000/. at the death **y °ok * bond 
ite duchefs of Marlborough, in cafe Mr. Spencer fliould ^J^" ** 
her ; the defendant defired he might confider of it, 20,000/. confi- 
le did accordingly, and being again applied to, to lend tioned for ^ 

/. on the terms aforefaid, the defendant at laft con- ^000/.' to the 
rhereto, and on the 17th of May, 1738, carried the defendant, at or 
in bank notes to Mr. Spemer 9 and paid the fame to him, J^^JJJ ^, 
ereupon executed to the defendant a bond dated the the Duchefs of 
ly, in the penalty of 20,000 /. conditioned for the pay- Marlb*rougV% 

1 10,00©/. to the defendant, at or within fome fliort J^^ 
er the Duchefs's death, in cafe Mr. Spencer mould fur- furviveher, but 
, but not otherwife. not otherwife. 
Duchefs of Marlborough died the J 8th of OBober 1 744, The Duchefc 
he month of December following, on the defendant's de- dicd 0ff - l8 > 
to Mr. Spencer the bond above mentioned to be cancelled, monThof Dim- 
med a new bond, whereby he became bound to the de- her foUowing, 

in the penalty of 20,000 /. conditioned for payment to a" t ^ e ^ e v fei ^" 
:ndant of 1 0,000 /. with lawful inter eft on the 19th of toMr.^nr 
en next, and at the fame time executed a warrant of the °°nd *» he 
r to impower a judgment to be recorded againft him in cc^^anew.one 
g*s Bench, at the defendant's fuit, for the faid 20,000/. in the penalty of 
aid bond 5 the defendant, by virtue of the faid warrant 2 .°»°^ o/ - c°adi- 
tiey, caufed a judgment to be made out on the faid bond mcnt tothfde- 
Mr. Spencer, at the defendant's fuit, for the faid 20,000/. fcndint of 
corded in the King's Bench of Hilary term next enfuing ^^n*reft 

of the faid bond. on the 19th of ' 

April next, and 
etime executed a warrant of attorney to impower . judgment to be recorded againft him m 
ihe zo,oco /. which was done accordingly. 

e month of December 1745, the defendant, by the in- ln Dec - '74S> 
of Mr. Spencer, being with him in his houfe at Wlndfor, 2nd7nt ? "t£/. 

in pare and on 
«>■ S thz 2 lb of March looof. more. 



lot Catc&fng T5argata. 

Bui ofCmt. he, on the 14th of that month, gave the defendant a bill for 
r *lA*n**'' I00 °^ on H° are aru * Company, in part of the defendant's debt, 

and on the 21ft of March following fent the defendant 1000 /. 

more by his fteward. 

Ob the 19th of On the 19th of June 1746 Mr. Spencer died; but before 
7***$ »74$, his death made his will, and, after payment of his debts and 
jKefoJjfjJig legacies, gave all the refidue of his perfonal eftate to be at 
featbmadebU his fon's difpofal, the prefent Mr. Spencer, provided he left no 
^ili, and after younger child, and appointed the plaintiffs to be guardians of 
S^glve the're^ n * s f° n * an( * ^(o executors in truft for him during his mino- 

Adueofhisper- Xlty* 

fnaleftate to 

tkfo, and appointed plaintiffs hit guardians and executors In truft, during bu minority. 

The executors of Mr. Spencer, finding his fpecialty debts 

very confiderable, and that fuch as were upon fimplc con- 

trafts only, which likewife amounted to a very large fum, 

would receive but little fatisfa&ion through the deficiency of 

Ml brottfiht te tcn ^ aTOr,s au ^ts, after payment of fuch fums as were really 

he relieved and bona fide due on fpecialties, brought a bill to be relieved 

again* defend- again ft the defendant's demand, as being an unconfcionable 

a«nelwifck!na^ onc > cnar g m g tnat tne condition ftipulated by his fecurity was 

We bargain, and abfolute, and independent of any other contingency than that 

«fei«Mcoa- f a grandfon of 30 years of age furviving a grandmother of 

80 ; and as the period or point of time limited for the pay* 

Tfcecovrtre. ment (which was in one month after the death of the Dut- 

m>Lkih*Zt- chefs) could not, by reafon of her great age and infirmities, 

salty, and judg- be removed to any great di (lance, but was every day approach- 

^ dJe^Lf "d*" xn %* an< * " l ^^ na PP c ned foon after ; fo the requiring fuch a 

am to deliver up ^ ar g c f um as 1 0,000 /. for the forbearance of 5000/. for fo 

tkeboodtobe fliort a time, being at the proportion of 200 /• for every 100/. 

!fH!!!-i d '/ n V* wa « a mod unreafonable and ufurious contract, and fuch *• 

acknowledge U- .., -it 1 c - 

tUfaOion on the w »l never meet wuh the approbation or countenance 0! a 

judgment, upon court of equity, efpecially where the demand is made upon 

pUbtitfs what leaflets of an infolvent perfon, to the prejudice and defcat- 

Aould be due at ing of his other juft and honeft creditors, and of an infant 

law but would heir and refiduary legatee, and that the executing a new bond 

aSbTai there to the defendant, after the death of the Dutchels of Marlk* 

**» fnAabifis rough, is only a continuance of the former t ran factions, and 

a^de^ndam*i P art0 °k °f tnc ori g in al fraud, and that being an unrighteottl 

cafe fcr 60m be- an d ufurious bargain in the beginning, nothing which was 

kg a fevourable done afterwards could help it, but on the contrary, defendant, 

***' in acquiring fuch new fecurity and judgment, and thereby 

feeking to conceal the true tranfa£ion, did, as far as in him 

lay, add to the firft fraud, and ought to be rettrained from 

taking out execution on his judgment, till the court have firft 

inquired into and determined upon the fraud, and thercfoi* 

'tis prayed, that the defendant may be adjudged by the court 

to be a creditor of Mr. Spencer only, for fuch fums as he fha» 

appear to have bond fide advanced, with interell from the rime <* 

advancing the fame, after deducting what he hath received, an* 

that 



J 



CattDfng TBarpta. 303 

tathc may be decreed to come in, and receive a fatisfa&ton for E*rftfC«M- 
icrcfidue of fuch principal fums only and intereft, pari paffu T t*»l|£2J*' 
ith Mr. Spencer's other creditors, according to the nature of his 
:mand, and for an injunction to (lay his proceedings at law till 
e hearing of the caufe. 

July the 2 1 ft, 1747, the injunftion was continued upon the 
erits till the hearing. 
Mr. Noel for the plaintiffs, 

The queftion is, Whether or no the executors are intitled to 
: relieved, on payment to the defendant of the principal really 
Ivanced, and legal intereft? 

Contrafts of this nature can be founded only on two principles, 
;travagance and diftrefs on the one part, and the exorbitant de- 
re of lucre on the other, and taking advantage of the neceffity 
; the perfon borrowing, 

Mr. Spencer, by a riotous courfe of life, run behind-hand ; 
id it is proved he owed above 2o,oool. At this time his chief 
tpendance was on the Dutchefs dowager of Marlborough, who 
as then 78 years of age, beyond the common date of man's 
fc, and Mr, Spencer himfelf only 30. 

It can bear no doubt but thefe were the only motives and prin- 
iples of Mr. Spencer's application, nor any doubt but the view of 
xuring to himfelf fo large a gain on fuch a probable contingency, 
r ere the motives of the defendant ; for, to ufe the words of a 
rcat author, it was an abundant (hower of cent, per cent. 

The defendant fays it 'was not of his feehing, but an application on the 
*rt tf Mr. Spencer, and that he was a fir anger U his perfon and 
't affairs \ but, notwithstanding his pretences, he cannot be 
id to be ignorant from the moment of the propofal to him ; for 
s offering fuch an exorbitant advantage, fpoke ftronger than 
thoufand circumftances, that Mr. Spencer was neceflitous, a 
an fad ion too unequal and enormous to bear the light, and 
erefore the defendant was fixed upon to carry it on with fecrecy, 
t fear, if fuch a tranfa&ion fhould be publickly known, and 
»mc to the ears of the Dutchefs of Marlborough, it might be 
cjudicial to his future hopes. 

Mr. Spencer was of an age to difpofe thereof fays the defendant^ 
id might act as he thought proper, as he was fui juris ; but not- 
ithftanding this, as the Dutchefs of Marlborough was alive, 
*d his father and mother dead, (he ftood in loco parentis, and 
anfequently he had a parental dependance on her, and there- 
ttd for fear of her knowing it, he durft not feek a remedy 
pinft this iniquitous bargain, becaufe of the rifque he run of 
Sfttlging the fecret. 

The defendant mult know Mr, Spencer to be in diftrefs, for 
'man of affluence and eftate could have got money on the com- 
*to terms, and therefore the propofal itfelf fpoke his fituation. 

This is become a cafe of publick concern, as it tends to the 
"■n of many other families ; but then, fays the defendant, conftder 
[* rjfque I run; if it turned out againjl me, I had lofl my money. 
*ka I compare the ages of the perfons, one 78, die other 30, 



Catcftfng TBarijum. 

'tis a farce to call it a rifque; the Dutchefs of an age few arrii 
at, and indeed no one would wifli to arrive at. This is certain 
not a fair and juft tranfa&ion, but unequal, and therefore r 
Kevable iu a court of equity . But then the defendant fays, M 
Spencer, though only thirty years of age, was of a wak and decoy 
canftitution, and therefore there was an equal chance whether he fu 
vtved the Dutchefs of Marlborough. This was an after-thougrj 
for Mr. Backwelt, examined for the plaintiff, does not fay it w; 
at all conGdered at the time* 

Tis proved in thecaufe, that Mr. Spencer was then, and fon 
years before, and after, of a robuft conftitution, prior to h 
marriage naturally fo, but by an improper conduct brought in 
a decayed ftate. But, fays the defendant, all thefe obfervations a 
out of the cafe, as Mr. Spencer, after the Dutchefs of Mai 
borough* j death gave a new bond, and warrant of attorney to ent 
iudgment, and therefore became a common creditor. 

The original bond was to pay 1 0,000 /. if Mr. Spencer fu 
▼Wed the Dutchefs of Marlborough. When he gave the fecor 
bond, he was not free and at liberty, nor did he know he cou 
be relieved; and this fubfequent tranfa&ion is, therefore, - 
confirmation or fanftion of the original bargain. 

Then, fays defendant, it is no fraud. Though it be not fo 
the particular fignification of the word, yet if it be unjuft, 
its nature exorbitant and extravagant, this court have confide 1 
it in the nature of fraud. 

I will mention cafes of this complexion, in which the ecu 
have proceeded on thefe principles, where a contraft has be 
exorbitant and unequal, and have relieved, though nothi 
illegal in the cafe, as where avarice has appeared on the one fa 
and poverty on the other ; and have alfo taken into their a 
Cderation the fatal tendency fuch cafes have, with regard to 
publick. There are like wife other cafes in which the court 
determined a fubfequent a£t (hall not eftablilh a contract: orig ; 
ly bad. 

The cafe of Sir Thomas Meers before Lord Harccurt , 
Sir Thomas had, infome mortgages, infer ted a covenant, that 
• intcreft was not paid punctually at the day y it fhould from thai 

and fo from time to time, be turned into principal, and bear i 
Upon a bill fled, the Lord Chancellor relieved the wot 
againfl this covenant, as unjufl and opprefftve ( 1 ) . This 
mentioned in Bofanquet v. Dafbwcod, before Lord Talbot 
Eq. in his time, 40. This, faid he, in giving his op 
an authority in point, that this court will relieve in caf 
(though perhaps ftriclly legal) bear hard upon one p 
reafon is, becaufe all thofe cafes carry fomewhat of fi 
them; I do not mean fuch a fiaud as is properly d 
fuch proceedings as lay a particular burden or har< 
any man: It being the bufmefs of this court to re 
oilenccs againlt the law of nature and reafon. 

(l) So Lord OfiJjlon v. Lord ?V- J!oncba:rh 9 2 l\f. 44$. Sc 
ith % 1 Salk. 449. Broadway v. More- Ecuns, [^fi. 2 vol. 330. 
»- M*jiLy 9 247. Al-.fvrdw l\aiber- 



CatcfKttg "Bargain. 305 

iVern. 121. Wifeman v. Beakc, A. tenant for //ft, remainder Mo/Chm- 
tobis firft and every other fon in tail, remainder to his nephew B, 'r^Ji*.** 
B. enters into fever al fiat utes to C. for payment of ten for one upon the 
death of A. in cafe he died without iffue male in the life of B. C, 
in the life of A. brings a hill to compel B. either to pay principal and 
interefi, or to heforeclofed of any relief againfl the bargain. B. by his 
anfwer declares the bargain fairly made, and intends to abide by it, 
onithai be would feek no relief againfl it. A dies, and B. brings 
Inll againfl the executor ofC* and twtwithflanding B.'s former an- 
finer, he is relieved againfl the bargain, on payment of principal and 
iftterefi without cofts. 

Wifeman was then 40 years of age, a man in bufinefs, a proc- 
tor in the commons, and yet the bargain was fet afide upon ge- , 
neral rcafons of equity, and publick inconvenience, a ftronger 
confirmation too there, than here, and yet he was relieved* 

James v. Oades, 2 Vern. 402. there A. borrowed 2 col. oflL 
and gives B. a mortgage defeazanced, to be void on B.'s paying A* 
40 1. per arm. for eight years by quarterly payments ; the court declar- 
ed it to be an agreement againfl confidence, and decreed a redemption 
inpayment of the 200 1. withfimple interefl, and faid, if this Ihould 
be allowed, it might be carried to nine years, and fo on, with- 
out any ftint or bounds. 

So in the prefent cafe, if the court fhould fay it would do at 
'/8 years of age, it might as well do at 90, and therefore no li- 
mits could be fet to it. 

The cafe of Curwyn v. Milner, the 1 pth of ]unt f 73 1, before 
&e Lord Chancellor King, 3d Wins. 29 2 • marginal note. There 
*** heir of about 27 years of age, and who had a commiffion in the 
guards % borrowed 500 1. on condition to pay ioool. if he furvived 
w father and father-in-law; but if he died before bis Jather 9 or 
father-in-law ', the lender tolofe the 500 1. The heir furvived his 
father and father-in-law, and was relieved, though after he bad 
P°*d the money, it being for fear of an execution. 

1 Vern, 167, Nott v. Hill. A purchafer of a reverfton from 
flf » heir in the lifi of his father, at an under value was fet afide, 
though if the heir had died before his father, the purchafer would have 
*3^ oil his money ( 1 ) . 

It may be faid, Nett's was the cafe of a young heir, and there- 

f°re not like the prefent ; but that is not the fole reafon courts of 

Equity go upon, but on general rules : however, for argument's 

feVe, 1 will fuppofe it to be on the firft principle, the Dutchefs 

*>f Marlborough may then be con fide red in loco parentis* 

The Earl of Ardglafle v. Mufchamp, 1 Vern. 237. Thomas 
w/ of Ardglafle for 300I. in 1675, g ra ^ € d to the defendant a 
Knt-chirge of 300 1, per ann. out of lands of ioool. per ann. to 
hddtothe defendant and his heirs, and to commence from the firft 
Michaelmas or L:u!y-day after the Earfj death without iffue male, 
tfttriaards the Earl fettled his eflate for 300L confideration, to the 
*ft *f hlmfdffor life, remainder in tail to all his iffue male, remainder 

U)iPen.zji. S. C. 2 Fern. 27. S. C. 1 E^ Ab. 275. S. C.2 Cha.Ca. 120. S. C. 



a°$ Catc&fng TBargafa. 

*" lo ™**** m in tail to the plaintiff his uncle, and then the plaintiff 'and EarlTho> 
Janssin. * mas hoth brought their bill to be relieved igainft the grant of the rent- 
charge, as obtained by fraud and praclice, after which bill brought the 
defendant obtained a releafe of that fuit from Earl Thomas, and the 
C 3°6 ] now E ar ?s bill was (Earl Thomas being dead) tofet afide the grant 
and releafe, upon payment of 500 1. with intereft. At the frfl bear* 
ing Lord Keeper North doubted it might be too great a violation on 
contracl tofet it afide; but upon re-hearing, after fome days confiderv 
tion, he decreed a reconveyance or releafe of the rent-charge, and that 
the fame Jbould befet afide, and a perpetual injunction awarded, upon 
the plaintiff's paying the defendant 300 1. and interefl\ and the it* 
fendant obtaining a re -hearing afterwards, tie Lord Keeper then de- 
clared he was fully fatisfed with the decree, and that if he were to 
die prefently, he would make it, andfo confirmed it. 

Tour Lordfliip obferves that after the bill brought for relief, the 
plaintiff releafed it, therefore he knew he might be relieved ; and 
on the bill brought by the uncle afterwards, the court reliefcd 
notwithftanding the releafe: for wherever it is a mifchiefthat 
affefts the publick, as the prefent does, the court will, without 
regarding what is done by the private parties, relieve. 

I have confidered this cafe hitherto as an unreafonable and 
unconfcionable contrail, and that the bargain ought to befet 
afide upon principles of equity, regarding die publick ; but I 
fliall now endeavour to fhew it is illegal. 

Lord Coke, in his 3d Infl. ch. 70. 151. fays, If any perfon af- 
ter his death was found guilty of ufury, his goods were for- 
feited to the crown. Thus it flood as an offence at common ! 
law, but the ftatutes have indulged it to fuch and fuch pointy 
and yet wherever there is an attempt by a tranfaclion to procure ' 
an exorbitant gain, it is certainly illegal, and immaterial whe- 
ther it falls exactly within the ftatute of ufury, for ftill there it \ 
fomething unconilitutional and illegal in it. 

But I will go further, and infill it is illegal within the ftatutei 1 
of ufury themfelves. • j 

21 Jac. r. 17./ 2. None fliall, upon any contract, dircQlyflf* 
.indirectly, take for the loan of any money, &c. above the rate 1 
of 8/. for 100/. for one whole year, in pain to forfeit the treble J 
value of the money due, tffc.f. 5. This law fliall not be con^l 
(trued to allow the practice of ufury in point of religion or coo* 1 
fcience. 

Clayton's cafe, 5 Co. 70. a. The plaintiff requeficd RtighntAA* 
to lend him 30 1. and on communication betwixt them, Reighnokk * 
lent Clayton 30 1. 6 Dec. 34 Eliz. //// the fecond of J une fillo* 
ing y to pay him for the principal and loan of it 33 /. at the faid ft* 
cond of June, if the fon of the obligee be then alive, and if he die bh 
fore the faid day, that then he foal I pay him but 27 1. which was 3 k 
lefs than the principal. Refolved by the whole court, that it was J^ 
ufuriom contracl within theflatute, for the reafon given by Poph* 
on Burton'/ cafe, 5 Co. 69. that if 'it Jhould be otrt of the JUtiM 
for the incertainty of the Ife, theflatute would be of little ejffe8% 

I cite this to fhew that if bargains were contingent, anil 
rifque run, yet even then they have been held to be ufurioBS* 



Catc&fttff OSarpfit. 306 

>o in the cafe of Burton v. Downham, Cro. Eliz. 642. where Earl of Ch «- 
agreed with jp. S. to give him 10/. for the forbearance of T ?^i*^.' 1 '" 
/. for a year, if £ /s fon were then alive, it was held to be 
try by reafon of the corrupt agreement, and it is the intent [ 307 1 
ksitfo, or not fo. 2 Anderfon 121. />/. 65. S. C. 
So in Ma/on v. Abdy, 3 Salk. 390. /A* obligor was bound in a 
d of 300 1. conditioned to pay 2 2 1. I o 8. premium at the end of the 
1 three months after the date, &c. andftxpence in the pound) at the 
tf fix months as a further premium, together with the principal 
fin cafe the obligor be then living, but if he dies within that time, 
principal to be loft ; adjudged this as an ufurious contratl, becaufe 
e was a pofftbility, that the obligor might live fo long, and there is 
xprefs provUion to have the principal again, in Car the w 67. S.C. 
'dgedupon a general demurrer, that this was an ufurious contrail x 9 
iffuch contingency of the death of a man in full health, fbould 
*nt the ufury, contingencies might be extended to the death of two 
bree more, andfo theflatute be of little ufe. 
behave full evidence to (hew the circumftances, and fituation 
icalth of Mr. Spencer, at the time the defendant lent the mo- 
, and Mr. Backwell examined for the defendant, fays that he 

> not remember that when he applied to the defendant to ad- 
cethe 5000 /. he faid any thing of Mr. Spencer's health, or 

of living, but on being preffed to do it, faid he would con- 
r of it, and confult his brothers about it, and afterwards 
:cd to lend it. 

hbn Griffiths, a fervant of the old Dutchefs of Marlborough, 
1, that in 1738, Mr. Spencer lay under great ncceflities for 
it of money, and did owe feveral debts to the amount of fe- 
ll thoufand pounds ; fpeaks too as to Spencer's expedition* 
n the Dutchefs, and as to his concealing his debts, and own- 
to him that he fecretcd thefe affairs from the Dutchefs, for 

> it fhould prejudice him in her favour 5 and hurt him in re- 
d to the hopes he had from her will. 

bother witnefs, William Loftin, fwears, Mr. Spencer was in- 
tedto different perfons in or about May 1738, in 20,000/. 
I was not then able to pay them, or any part thereof; and 
* he took all poflible care to prevent the Dutchefs's knowing 
*ke was in debt, and likewife to keep all other debts, that he 
Awards contra&ed, fecret from her, for fear he fliould forfeit 
r fcnd intentions to him. 

k is admitted in the caufe, that Mr. Spencer, in May 1738, 
•only 30 years of age, and the Dutchefs 78. 
Jmes Napier who attended Mr. Spencer as a furgeon, fwears, 
R inand before May 1 738, he was not of a broken conftitution, 
r *ashis lifea precarious one, but very ftrong and healthy, 
'that he was likely to live many years, and that five years after 
•time he had a fever, but got foon well, and from 1736, to 
\fa enjoyed perfeft health ; and John Griffiths before men- 
fcl&ys, that on afking the apothecary who. attended him, as 
ijttdgment of the ftate and Condition of Mr. Spencer's health, 
■4 ii Spencer could refrain from chewing tobacco, and drink- 
BVhe might ftill live a great while, being born with a 
V X betttf 



3<>7 Gatcljtttg TDarpfir. 

EariofCHis- better constitution than moft men; and fevcral other perfons | 
rZ Uvlt*v V .' f wear » Mr « Spencer enjoyed a good ftatc of health in general, till 

a few months before his death. 
t 3o8 J ^' ie E* utc ' ic fe oi Marlborough died Oclober the 1 8th, 1744, and 

Mr. Spencer June the 19th, J 746. 

Mr. C/arie of the fame fide. 

Fir/I, I beg leave to infill that if this contraft had been cra- 
mmed into at law, it would have been confidered there as as 
u furious one. 

Ever fince money has been made the medium of trade and 
commerce, all civilized governments have laboured to prerent- 
exorbitant gain upon the loan of it. 

The ftatute of the 1 1 Hen. 7. c. 8. was the firft aft that tote- 
rated the taking of intereft. By the 21 Jac. the courts of law art 
inverted with a kind of equitable jurisdiction, as it requires then 
to take into their confidcration the particular circumftances of 
the cafe. 

I will lay down the inferences firft, before I cite the cafes. 

Firjl, The intention of parties at the time of the bargain, 
have great weight in determining the court, and if it is plainly 
loan of money, then ufurious. 

Another principle is, that wherever a fecurity is taken for 
larger fum of money than is really advanced, it is ufurious, 
the borrower, by doing fome collateral aft, might be at liberty 
pay legal intereft. 

Another principle is, that the whole fum muft be lent, or 
within the ufurious ftatutes. 

Moore 397. Beecher*$ cafe, cited in the cafe of Reynolds 
Clayton, as adjudged in -S. R. there B. delivered wares ot the 
lue of 100/. and no more, and took a bond with a condition 
re-deliver the wares to B. within a month, or to pay 120/. at 
end of a year; the obligation was adjudged void under the ftal 
of ufury. 

This reds upon the intent of the bargain, and I mention 
to (hew what opinion courts of jufticc had of com" 
bargains. 

Burton v. Downham, Cro. EHz. 642. The intent of this 
to have a (hi ft. 

Burton* s cafe, 5 Co. 69. Roberts v. Tremain, Cro. Jac. 507* ' 

Cottrel v. Harrington, Brown lo*u 1 80. Fuller's cafe, 4 
208. but care is to be taken, faid the court in that cafe, there 
no communication for the loan of money, for that will make 
ufury. 

Confidering the great number of cafes on this head, there 
been an extraordinary uniformity of judgment in the judges 
the feveral courts. 

Comberb. 125. Mafon v. Abd^ taken notice of by Mr. Ni 
fore, but I mention it again for the fake of what Lord Chief 
tice Holt faid very humouroufly, You do run a great rifqutfi 
deed, not of the death of the perfon, but of the lofs of yosr 



Catc&fng; OBargafit. 3 C * 

r. Juftice Dodderige faid in Roberts v. Tremain, cafualty Earl of Chi s- 

fl is ufury, but cafualty of principal is not. "janssek*" 

t (lands upon the cafes -, to apply them in their infer - 

he prefent cafe. 

tention of parties at the time of the bargain, will have [ 309 ] 

ght in determining the court, and if it is plainly a loan 

f , then it is ufurious. 

ily thing in view here, upon the firft communication 

the parties, was a borrowing ; for Mr. Baciwell exa- 

* the defendant fays, that when he applied to him, he 

1 if he would lend Mr, Spencer the 5000/. on the terms 

>nd itfelf is a direct fecurity for paying double the fum 
n the contingency happening ; there is an agreement 
raying a larger fum than lent; another mark! and cri- 

encer could not have delivered himfelf from paying this 

paying a lefs, becaufe the bond did not put it in his 

do fo. 

as to that part of the cafe which is hazardous. 

; of the cafe3 cited, do the court enter into the dif- 

f the nature of the chance, but reject this, as being 

lient, for not confidering the tranfaftion of the parties 

the a£l ; for if they mould give this latitude, in the 

of Lord Chief Juitices Popham, Holt, &c. it would 

z the a&s of ufury mere wafte paper. 

what ought to be the fate of this bargain, now it comes 

idered in a court of equity. ., 

firft place, this court will not lay down any exprefs 

v far they will go in relieving againfl fuch bargains, for 

uld teach perfons, how far they may fafely go, and if 

it a fpark of oppreflion, a court of equity will relieve ; 

equity too will make freer with thefe bargains, than 

law will do. 

onds v. Cockerill, Noy 151. The court mediated, by 

le borrower to pay the principal only. 

nciples now eftablifhed, were eftablifhed with delibera- 

zven two of the Judges who doubted of thefe princi- 

t, were forced afterwards, from the growth of this evil, 

Tom their former opinions. 

Caf 276. Waller v. Daft, before Lord Nottingham. 
young gentleman and tivo others, employed one Willis to 
>1. Willis employed Wiltfhire, who /poke to Dalt aftlk- 
\ought of him Jills for 500 1. 'The plaintiff gave bond and 
tr the money 1 Wiltfhire fold the ft lis for 2 jo 1. and kept 
is and "Willis's pains, and paid 200 1. to the plaintiff ': 
mt never treated with the plaintiff, and denied on oath, 
r treated about the loan of money, and depofed thefilks to be 
alue or thereabouts, but proof was given to the contrary. 
*f 200 1. and interefl, (quaere, for the interefl,) and relief 
Ufendant quoad refiduum ( 1). 

l) SmBsrker v. Fanfommer, 1 Bro. Cba. Rep. 149. 

X * 2 Chan. 



309 Catcljfltff TBargafrt. 

Earl of Cues- 2 Chan. CaJ. 136. B^ray v. Beak, Lord Keeper tf< 
7 Y********™ veT fed Lord Nottingham's decree, 0/ 1/ «;/u hazardous 
only, and no proof of fraud \ for coming recently out of 
of law, Lord North was at firft ftri&ly legal, but aft< 
relaxed. 
[ 310 ] Berncy v. Pitt, 2 Vern. 14. The plaintiff being a young n 
his father tenant for life only of a great eft ate, which by I 
was to come to the plaintiff' as tenant in tail, and allowing tl 
tiff but fcantily, he borrowed 2000 1. of the-defendant in 16' 
entered into two judgments of 5000I. a-piece, defeafanced 
them, that if the plaintiff outlived his father, and within ■ 
after his death paid the defendant 5000I. or if the plaintq 
marry in the Jife-time of his father , then if he Jhould from fu 
riage, during his father's life, pay the defendant intereji 
5000I. the defendant Jhould vacate the judgment, with this 
claufe in the defeazance, that it was the intent of the parties 
plaintiff did not outlive his father, that the money Jhould nc 
paid. In 1 679, the plaintiff's father died, and to be relieved 
the judgements, upon payment of the 2000I. lent, together wh 
eft, was the bill, which complained of a fraud, and an undut 
tage taken of the plaintiff *s neceffity, when in freights. 

The caufe came firjl to be heard in Hilary term 27 Car. 2 
Lord Nottingham, who in regard the judgments were for moi 
and not for wares taken up to fell again at an under-value, an 
fpeEl of the exprefs claufe in the defeazance of the defendants k 
If the plaintiff died before the father ', did not think fit to ret 
plaintiff againjl the bargain itfelf, without paying the 5000 
intereji from a month after the plaintiff 'j death. 

The caufe was re-heard before Lord Chancellor Jefferu 
made no difference in the cafe of an unconfcionable bargain, wt 
be for money or wares, and though there was not in this , 
proof of any pratlice ufed by the defendant , or any on his be t 
draw the plaintiff into this fecurity ; yet, in regard merely to 
confcionablenefs of the bargain, ht reverfed Lord Nottingha 
cree, and decreed the defendant Pitt to refund to the plaintiff 
money he had received of him, except the 2000 1* originally lei 
the intereji for the fame. 

In Burney v. Tifon, 2 Vent. 359. Lord Keeper No> 
firmed Lord Nottingham's decree, but added a non retral 
exemplum; what feemed to flick with him, was fettin 
mens bargains. 
W ^^ 3°5- Nott v. Hill, I Vern. 167 (a)..This was the cafe of a pur 
a rcverfon from an heir in the life of 'his father, where if the I 
died before his father, the purchajer would have loft all his mot 
yet Lord Nottingham ufon the fir ft hearing decreed a redemp 
on a re-hearing, Lord Keeper Guildford reverfed it, and Lore 
celUr JcfFeries reverfed Lord Guild fordV decree, and confirm 
Nottingham*/, declaring he took HillV purchafc to be an urtri 
bargain in the begin nihg, and that nothing which happened aflti 
could help it. 

Johnfon executor of Hill v. Nott, 1 Vern. 271. tie K 
brought by IliliV executor, fitting forih % that the defendant % 



Catc&fns TSargafn. 310 

tail, and had covenanted to mate further affurance, and Earl °f Cmh- 
might be compelled to perform his covenant in fpecie, and be 'V^sseii ** 
levy a fine. Lord Keeper Guildford feemed now to remit 
ricl legal notions, for he denied the plaintiff any relief, and 
aclice of pur chafing from heirs was grown loo common, and 
e would not in any fort countenance it, and difmiffed the bill, [ 3 1 1 ] 
^e plaintiff to bring his atlion of covenant at law, 9 
*E,2x\oiArdglaJfev. Muf champ, Lord Guildford remitted 
ly from his (trie! legal notions ; many precedents in the 
iere\i, Lord Bacon'/, and Lord Coventry'/ times and ft nee 
sced,whereby it appeared, that unconfcionable bargains, which 
made with young heirs, had been fit aftde by decree of this 
f after fome days confideration had, he decreed a reconvey- 
tpon a rehearing declared he was fully fatisfied in the decree, 
ufe of this remarkable expreffon, that if he were to die pre- 
would make it, and fo confirmed it* 
5 of precedents induced him to give the relief he did. 
Price, 1 Fern. 467. The defendant had for many years 
'i young heirs, by felling them goods at extravagant values, 
aid five for one, and more, upon the death of their fat hers f 
btained from the plaintiff and two other young gentlemen^ 
od efiates, fever al fecurities, wherein they were bound Je- 
id jointly, in 4000 1. for payment of great fiums of money, 
rellor Jefferies decreed the plaintiffs fecurity to be delivered 
ment of what the defendant really and bona fide paid 
and for his own proper ufe. 

gh v. Smith. 2 Fern. 77. Wifieman v. Beake, 2 Fern 
re lords commiflioners. James v. Oades, 2 Fern. 402 
John Trevor, Twifieton v. Griffiths, I IFms. 310. be 
Cowpcr, who grounded his opinion chiefly upon the cafe oj 
Pitt, andfaid that Lord JefFcries'/ decree, flanding there 
t every one thought the fame was jufl, and that there was 
» attempt in parliament to reverfe it. 
'hancellor King in Curwin v. Milner, as well as Lord 
)* ftri&ly legal at firft coming to the Seal, determined 
t againft the bargain, tho' an exceeding ftrong one. 
mention only one cafe more with regard to the pre- 
5 of the bargain, Lawley v. Hooper, Nov. 19, 1745, 
r Lor'dlhip (1 ), The plaintiff a young'r fori, and in tit led 
ty of 200 1. a year for life, out of the ejlate of his elder bro- 
involved in debt, and a prifoner in the Fleet, and having 
fans of delivering himfelf from a gad, than by difpofing of 
or part of the annuity, fold to Mr. Pavenant J 50/. a 
thereof, for 10^0 1. hi the deed there was a provi/o, that 
ime the plaintiff Jhould define to repurchefie the fiaid three 
he annuity, and Jhould give fix months notice to Davenant 
, of his intention fo to do, and at the expiration of fitch 
to Davenant, his executors, &c. 1050/. then Davenant 
ifftgn to the plaintiff or his afftgns ; after this deed was in- 
/ ioben all parties were met for the execution, Davenant 

(1) Ptfi. 3 vol, 278. S.C. 
• X 3 infifled 



3n Cfttc&iug IBargafit. 

Earl of Che t- injijted upon an indorfement, and to befigned by the plaintiffs that in 
"flint*?' ca f c he J houid repurchafe the f aid three fourth parts, the fame Jhoulik 
upon payment of 1050 1. and 75 1. and all arrears, which the plain* 
tiff charged he eonfented to by reafonofhis diflrejfed circumftances. 
r 312 1 Davenant being dead, the plaintiff brought his bill fir an account tf t 
what ivas due to the defendant for principal arid intcreji of tht * 
IO50I. and what defendant bad paid for the infurance of the flam* 
tiff's life, which by the bill the plaintiff fubmits to allow, and thtt, 
upon payment ofwhatjhou/d be due, the defendant might re-a/pgntbt 
faid annuity. 

Your Lord/hip, upon the circumflances of the cafe, thought this 
was, and is to be taken as a loan of money, turned into this 
fhape only, to avoid the flatute of ufury, and that it ought to be 
fet afide as a falc, and made a fecurity only, and that the plaintiff 
was intitled to redemption on payment of 1050/. with legal la- 
tere ft for the fame. 

Thus it ftandson the cafes; and the rule they go by b the, 
unconfcionablenefs of the bargain, and the inconvenience to the 
publick, for they fpeak of it as a growing evil. 

Thefe cafes, and principles, obviate the obje&ion that, fro* 
the anfwer of the defendant, may be prefumed to come from the 
other fide, as that Mr. Spencer wis not a young heir, norfup-' 
pofed to be in neceflitous circumftances, for he had fcvexal thott- j 
fand pounds a year. 

Many of the cafes cited, were not determined on the rule of 
relieving young heirs, particularly the Earl of Ardglaffe v. iM$ 
champ and others. 

Mr. Spencer 9 $ expectations were as great from the Dutchefsoftj 
Marlborough as if he had been her fon, and (he might have been | 
confidered as a mater-fiimilias (landing in loco parentis, and heal: 
filius-familias. * 

A man who has a confiderable eftate, if his expences exceed 
his income, is a neceifituous man, where he is undtr difficulties oT 
railing money, and is in great want of it •, feveral witnefles proi*^ 
the great ftreights Mr. Spencer was in, but this evidence is not 
the only evidence, for the contratt itfelf fpeaks it, nor didanf 
of the cafes cited require evidence, that he was neceflitous: I* 
Berney v. Pitt, tho' no proof of pradlice ufed by the defendant^ 
or any on his behalf, to draw the plaintiff into the fecurity, Jtfc 
Lord Jtfferies reverfed Lord Nottingham's decree. 

Such bargains are always done in fecret, and if the court w* 
to require proof extrinfick to the bargain, it would be faying ** 
pnee wc cannot relieve. 

I fliall confuler next, as to what the defendant may infill with 
regard to the hazard. 

The inequality is extremely great, the Dutchefs of Marlknf^k 
was 78 years of age, and Mr. Spencer was only 30; there M 
evidence of his health brought down as low as within ten montNl 
of his death, and of his being of a ftrong con ft i tut ion for 0W*i 
years before this bargain, his life was infured only in 1744 
which could not have been done, if he had been in a bad fa* 
of health. 

I 



Catc&fojj TSatpfo. 3»a 

In the cafe of marriage-brocage bonds, the court does not dc-E^ 1 °^Cke s - 



crce for the fake of the plaintiffs, becaufe they may be faid to r ANS$£N * 

tSt perfidioufly, but to avoid the inconvenience which would 

otierwife happen to the publick. 

The fame as to the cajes of bonds to women of bad cha- f n 1 3 ] 
rafter (1). 

The fame as to premiums of attorneys, and guardians by 
clients, and infants after coming to age, Law v. Law, before 
Lord Talbot (2). Se/wyn v. Honeyivocd, 20thof Oclober, 1743 (3), 
$bep!eyv. IVocdhoufe, 17th of March 1742 (4). Pierce v. Waring, 
before Lord Hardwicke ( 5 ). 

On