1810. Ex parte [399] of any fine to the king, or any arrears of duty on his certificate. He was first admitted in 1767, and practised with credit until a large estate had come by devise to his wife, for her life, with an injunction to assume the name of Scrope, which he did, and at his own desire was struck off the roll in 1792. But his wife being dead, and the estates consequently gone over to the remainder-man, he was desirous to resume his profession. He had, as the practice of the Court required, announced his intention to be re-admitted, by giving the same notice which is requisite in the case of an attorney upon his first admission. He had also given due notice to the stamp office, by direction of the Court; on behalf of whom, Best Serjt. now opposed Mr. Scrope's admission, except upon the terms of his paying up his arrears of the duty upon his annual certificate, imposed by 25 Geo. 3. c. 80., from the time of his quitting the profession, to the present day: he was an attorney in 1785, when that duty was first imposed, and continued such till 1792, he therefore must have had a certificate under these acts from 1785 to 1792: and as the act of 37 Geo. 3. c. 90. says that he shall, after a discontinuance, receive no benefit from any certificate to be granted under the former act, unless he pays up his arrears in the manner prescribed by the latter act, he must necessarily pay the duty from the year 1792 up to the present time. Williams and Shepherd Serjts. in support of the rule: the statute which requires that the attornies on their admission shall pay up the arrears of duty, is the 37th Geo. 3. c. 90. s. 31., which provides, That the Courts may re-admit any such person; i. e. "admitted, sworn, enrolled, or registered in any of the Courts, who, after the first day of November 1797, shall neglect to obtain his certificate," on payment to the commissioners, of the duty accrued since the last certificate obtained by such person, and such further sum of money by way of penalty, as the Court should think fit to order and direct. The act was made five years after this gentleman had ceased to be an attorney, and was wholly prospective, and therefore does not apply to the present case. The Court held that the case was too clear for argument, and that there was consequently no reason why Mr. Scrope should pay the six shillings and eightpence which was a mitigation of the penalty directed by the statute; but as this case was not within the statute, no penalty at all was incurred. Rule absolute for his being re- 1810. Ex parte SCROPE. T WILKS V. LORCK. June 1. If a defendant be arrested by a wrong Christian name, the charge him on Court will dis THE defendant, who was in custody on mesne process, shewed by his affidavit, that he was baptized by the name of Berend, at Memel, in the kingdom of Prussia, and had always gone by that name; and had never, to his knowledge, been called by the name of Bernard, until the sheriff arrested the sheriff is him by that name; *on which ground Onslow Serjt. obtained a tion. rule nisi for discharging him out of custody. Shepherd Serjt. shewed for cause, that in the bailbond he was described by the name of Bierne. Besides, the Court will not summarily interfere in this case: because if they do, they will expose the sheriff to an action for false imprisonment; whereas if the defendant be left to plead the misnomer, he must not only verify his plea by affidavit, but bring a witness from Memel to prove by what name he was baptized, and hath since been known. Onslow, in support of the rule, referred to Stevenson v. Danvers, 2 Bos. & Pull. 109., Delanoy v. Cannon, 10 East, 328., Dring v. Dickenson, 11 East, 225., Cole v. Hindson, 6 T. R. 234., Shadgett v. Clipson, 8 East, 328., and Dixie v. Scholey, cit. ibid. LAWRENCE J. Those cases go the length of shewing that if the sheriff arrests a man who is named in a writ by another name than his true name, the sheriff will be a trespasser, and is liable to an action of false imprisonment, and perhaps the plaintiff is so likewise; and they are equally liable whether the Court summarily interfere or not. Upon the defendant's undertaking to bring no action, the Court made the rule Absolute. (4) (a) See the next case, Ahilbol v. Beniditto. motion. And liable to an ac *[ 400 ] 1810. June 2. But where there is only an inaccuracy in the spelling, BUT AHITBOL V. BENIDITTO. UT in this case, where Aaron Beniditto had been sued and arrested by the name of Aaron Benedetto, upon the like application, as in the last case, being made by Pell Serjt., idem sonans, the the Court said it was idem sonans, and refused the rule. so that the name is still Court will not interfere. June 2. If a trader keeps house, and causes himself to be denied to a taxgatherer who calls for the taxes, it is an act of bankruptcy. [ 402 ] JEFFS v. SMITH. THIS was an action brought against the sheriff of London for falsely returning nulla bona; and upon the trial of the cause at Guildhall, at the sittings after last Hilary term, the only question in the case was, Whether the writ of execution which had been sued out was over-reached by a prior act of bankruptcy, the existence of which would justify the return? The act of bankruptcy relied on was this: Lawson, a taxgatherer, called at the house of the bankrupt to collect the assessed taxes and property-tax. The bankrupt was at home, and was, with his own assent, denied to Lawson. The jury found a verdict for the plaintiff. Best Serjt. had on a former day obtained a rule nisi to set aside the verdict and enter a nonsuit. Shepherd Serjt. now shewed cause. There is a distinction between the species of act of bankruptcy committed by the debtor's leaving his house with intent to delay his creditors, and his beginning to keep house: in the latter case it is necessary that a creditor should be actually delayed; but it is not necessary in the former case. And the creditor who is delayed by the keeping house must be such a creditor, who, upon the denial, can immediately sue out a commission of bankrupt, or immediately arrest the party: but this tax-gatherer could do neither; nor could he prove his demand under the commission. This demand is rather a duty than a debt. The tax-gatherer might indeed have distrained under a warrant; but he could pursue neither of the other two courses: no case has hitherto been decided on this question. MANSFIELD C. J. Could not the crown proceed immediately against the person of the debtor, as well as against his estate? And if he were dead, would not these taxes be a debt to be first paid by his executor? I cannot say that the crown is not a creditor, and that the keeping out of the way to avoid that creditor is not as much an act of bankruptcy as avoiding any other creditor. Best was to have supported the rule. Rule absolute. 1810. JEFFS 2. SMITH. TH CONSTABLE V. NOBLE. [ 403 ] June 2. A policy at and the name of from a place, which equally town, and a of coast, does where within port, but refers HIS was an action upon a policy upon flour, at and from Lyme to London, by the Swift, and ship or ships. Upon the trial of this cause at the Guildhall sittings after last Hilary designates a term before Mansfield C. J. it appeared that the first part of particular the flour insured was put on board the Swift at Lyme, which port comprehending an exsailed from thence and arrived: another parcel was shipped at tensive district Bridport Harbour, on board the Rose, which, in coming not protect a round to London, was captured by a French privateer. It was cargo laden any proved that there is no custom-house at Bridport Harbour, which is a member of the port of Lyme; that all ships which sail from thence are obliged to proceed to Lyme in order to procure their clearances there, from the customer of that port, and that Bridport Harbour lies about nine miles to the east ward of Lyme, and consequently geographically nearer to London, and a vessel bound from Lyme to London must therefore pass Bridport in her course; but whether on account of the necessity of standing out at first from Bridport on a more don. southerly course, in order to get clear of the Bill and island of Portland, before the easterly course could be pursued, it was a more itself. the limits of the to London" does nearer to Lon 1810. CONSTABLE 2. NOBLE. [404] [405] more or less easy navigation from Bridport to London than from Lyme to London, did not appear by the evidence: Axmouth, which lies about ten miles to the westward of Lyme, is also a member of the same port. The defendants contended, that the Rose did not sail from Lyme, and that therefore this voyage was wholly a different adventure from the voyage insured, and the risk never attached, for that the description in the policy referred to the local point from which the vessel was to sail, not to any political divisions of the kingdom. On the other hand the plaintiff urged, that a sailing from any part of the port of Lyme was sufficient to satisfy this policy, and as Bridport was nearer to London than Lyme was, the circumstances were so much the more favourable to the defendants, who therefore could not complain. Mansfield C. J. reserved the point, subject whereto the jury found a verdict for the plaintiff. Lens Serjt. in this term obtained a rule nisi to set aside the verdict and enter a nonsuit. Shepherd, Best, and Vaughan, Serjts. now shewed cause. If a ship receives her cargo at Deptford, that is not locally and strictly at London, but she would receive her clearances from the custom-house of London, and the risk would be protected by a policy at and from London. In this case an insurance at and from Bridport, and an insurance at and from Lyme, would equally have protected this risk, though perhaps an insurance at and from Bridport might not have protected a risk at and from Lyme, because the town of Lyme is more distant, and therefore the risk would be increased; but it is sufficient in a policy generally to designate the port from which a vessel sails; more minute accuracy is not required: it is not neeessary to designate some particular point or district in the port itself. If it were, half the policies effected would be void. It would be said that a ship which loads at the sufferance quays in Surry does not load in London. Nor would cargoes taken in at Limehouse and Gravesend, which are in Middlesex, be protected by a policy at and from London. The words must be construed according to the subject-matter: it has lately been decided in the Court of King's Bench, that neither the London Docks nor the East India Docks, are within the city or liberties of London: yet who will say that ships there laden are not protected by a policy at and from London? The case of Payne v. Hutchinson, C. P. |