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HARSETT

DAY

BLENNER- the circumstances of this case. The ejectment is brought in the

name, and under the demise of Lord Milton; he is represented by the defendant Judge Day, to be the head landlord, who seeks the recovery of the rent due to him, or the eviction of the lease. As against him, the tenant would have no defence but by redemption. But if the action had been brought in the name, and under the demise of Judge Day, as it ought to have been, he being, (as is alleged,) the head landlord and reversioner at that time; then it is insisted, the ejectment could not have been maintained.

It has been said that Judge Day would not bring the ejectment until Lord Milton had executed the conveyance to him, from an apprehension that Lord Milton might, whilst the matter rested on an agreement only, discover how much he had been imposed upon in the sale of the reversion to Judge Day. This is another groundless and unwarrantable attack by the plaintiffs upon the character of Judge Day. If there were any truth in this observation, and it was material in the cause, why was not the agent of Lord Milton examined to it? But there is no proof whatever to justify it, nor a single circumstance to show that Lord Milton was dissatisfied with his dealing with Judge Day, or ever complained of having

been over-reached in the transaction. Indeed, when it appears [ * 128 ] that Lord * Milton had derived from this property nothing but

disappointment, defeat, and expense; that he had a large debt, which he could not recover, and an estate which he could not make available; the inadequacy of the price paid for it is no proof of fraud or imposition.

But here is a misrepresentation by Judge Day (though without any fraudulent intent) of a material fact; and the consequence of it has been, that the tenants did not, and could not make that defence to the ejectment, which a true statement of the facts would have enabled them to have done. They have been (if the objection be a substantial one) illegally evicted. It is a case of forfeiture; and although the Court can no more relieve against a forfeiture created by Act of Parliament, than it can alter the law, yet it will see, and with jealousy will examine, whether the proceedings have been regular that worked the forfeiture. But it will be said, can these plaintiffs, who have received a considerable benefit from Judge Day, be permitted after such a lapse of time and acquiescence, to dispute his title? What they have received under a misapprehension of their rights cannot bind them; they were not contracting for a disputed title, or compromising litigated rights, as was

HASSETT

the case of Stephens v. Lord Bateman (1), but they accepted the BLENNER*bounty of Judge Day, under an impression that they had no right, and that proceeding from the misrepresentation that Lord Milton,

DAY. and not Judge Day was the head landlord, when the ejectment was

r *129 ) brought.

As to the length of time that has elapsed, it will be recollected,

to run, so as to bar the remedy, but from the period when the party had a knowledge of those facts that constituted the fraud. Here the parties lived in Kerry, the purchase deed from Lord Milton to Judge Day was not registered till 1792. They might have come up to Dublin, or employed some person to examine the registry; but there was nothing to induce them to do it, or to suggest it to them, and if they had, unless they had some one as astute as the counsel in this cause, the objection would not have occurred. When I say, which I firmly believe, that Judge Day was not aware of the extent of the legal objection (if it be one) to his proceedings in the ejectment; it would be too much not to allow the same plea of ignorance to the plaintiffs. If the ejectment could have been maintained under a demise by Judge Day, I should consider the objection as a mere formal one, but it is on Mr. Townsend's argument that I am considering the case; and if he be correct, no one, after the deed of March, 1786, could evict this lease, for the rent then in arrear, by an ejectment under the statute.

Here then is a case of a forfeiture, against which the Court will relieve if it can be done; it is a case where there is no legal or equitable bar from length of time; it is a case where a writ of error would not lie, as the objection was not upon the record. Is it possible, consistently with what the Court calls good conscience, that the defendant can protect a title so obtained, by means of the legal estate vested in the trustee of his mortgage ? If the eviction, upon which the defendant's title rests, be at law invalid, I cannot discover the equitable circumstances which should bar the plaintiffs from reversing the forfeiture, and I am of opinion that they are entitled to have that question tried; and for that purpose the bill must be retained, with liberty to the plaintiffs to bring an ejectment; and that the defendant shall not be permitted to set up the legal estate in the mortgagee, in bar of such ejectment, or to plead the Statute of Limitations (2). (1) 1 Br. C. C. 22.

(2) See Pincke v. Thornycroft, 1 Br. C. C. 289.

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With respect to the parties to this cause, I have considered it, and every point that has arisen, as if it had been between two of the most indifferent persons that could submit their rights to the consideration of this Court. I agree with the defendant's counsel, that the public have an interest in the characters of public men, and of all others, in the characters of those who preside in courts of justice; but it is an interest which must not be suffered to prejudice the rights of third persons; it is an interest of which the Judge, who is to decide upon those rights, must divest himself. He must carefully guard *against the influence of any such feeling. The characters and rights of the obscurest individuals, who come here to assert their claims, or are brought here to defend them, are equally entitled to the protection of the Court, with those of the most elevated persons in the community. But after having care- fully attended to the arguments in this cause, and impartially investigated the evidence, it is a gratification to me (and I may be permitted to express it) to find, that there is no ground whatever to impute fraud to the transactions of Mr. Justice Day, respecting this property ; and although he may possibly lose a considerable part of it, I very much deceive myself if his character is not perfectly secure.

IN THE KING'S BENCH.

SMITH AND OTHERS, ASSIGNEES OF LEWIS AND POTTER,

1791.

Nov, 19, v. HODSON.

Lord (4 T. R. 211–217; 2 Sm. L. C. (10th ed.) 143.)

KENYON,

Cl. J. If a bankrupt on the eve of his bankruptcy fraudulently deliver goods to

[ 4 T. R. 211 ] one of his creditors, the assignees may disaffirm the contract, and recover the value of the goods in trover: but if they bring assumpsit, they affirm the contract, and then the creditor may set off his debt. Where the defendant lent his acceptance to the bankrupts on a bill which did not become due till after the act of bankruptcy, and was then outstanding in the hands of third persons, yet the defendant having paid the amount after the commission issued, and before the action brought by the assignees, is entitled to a set-off the same as under the words “mutual credit," in the Bankruptcy Act (1). ASSUMPSIT for goods sold and delivered to the defendant by the bankrupts, before, and also by the assignees since, *the bankruptcy. (*212 ] Pleas non assumpsit, and a tender of 1911. 78. 6d. which the plaintiffs took out of Court. There was also a set-off. At the trial at Guildhall before Lord Kenyon, a verdict was found for the plaintiffs subject to the opinion of this Court on the following case :

In August, 1787, Lewis and Potter sold goods to the defendant to the amount of 421., and on the 4th of March, 1788, they drew a bill on him at two months, for 4421. payable to their own order, although at that time he was indebted to them in 421. only; which bill the defendant accepted. Lewis and Potter made the following entry in their books: “ 4th of March, 1788, Received from James Hodson an acceptance due 7th May, 4421. to bills and notes ; to provide 4001.On 26th April several bills were refused payment by Lewis and Potter, some of which were presented by bankers, on behalf of the indorsees. On the 28th April, 1788, the defendant went to the house of Lewis and Potter, and bought goods to the amount of 5311. 78. 6d. which were sent to him with a bill of parcels the same day; the goods were sold to the defendant at six months' credit. On the 29th of April, 1788, Lewis and Potter committed acts of bankruptcy. On the 9th of May the commission issued, and they were duly declared bankrupts, and the plaintiffs chosen assignees of their estate and effects. The bill for 421. drawn by the bankrupts, and accepted by the defendant, became due the 7th of May, 1788: the defendant did not pay it on that day, but in September following paid to Gibson and Johnson the holders

(1) See now 46 & 47 Vict. c. 52, s. 38.

SMITH

Hopson.

thereof 2001. on account of the bill; and in October following before the six months' credit upon the goods was expired, he paid the residue with interest. The jury thought the bankrupts gave an undue preference to the defendant in the sale; and gave a verdict for the plaintiffs, damages 4001. The questions for the opinion of the Court are, 1st, whether the plaintiffs can support this action for the price of the goods ? 2ndly, if they can support this action, whether the defendant cannot set off against it the money paid by him on the above-mentioned bill for 4421.?

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Russell, for the plaintiffs, was desired by the Court to confine himself to the second point, as they entertained no doubt upon the first. As to which he contended that though the sale were good to charge the defendant in this action, yet he was not entitled to support his set-off under the 5 Geo. II. c. 30, s. 28 (1). *The words which will be relied on are mutual credit; but they were by no means intended to be used in so extensive a sense as the one now put on them by the defendant. The giving of credit is merely giving a future day of payment for a pre-existing debt; and to entitle a defendant to set it off, it must exist previous to the act of bankruptcy. As where goods are sold to be paid for at a future day, the vendee becomes a debtor for the value upon the delivery, though payment cannot be exacted from him till the day arrives : in the mean time the vendor is his creditor to that amount; and in that sense only is the word “ credit” to be understood in the Act. This appears further from the subsequent words of the statute; for the commissioners are directed to state the account between the parties, and claim or pay only so much as shall appear due on the balance of such account. In order therefore for a party to set off any demand, it must be such as may be made an item in the account, and either certain or reducible to a certainty at the time of the act of bankruptcy committed. The Act itself says, that the balance of the account is to be made appear “on setting such debts against one another;" which plainly shows that nothing more was meant by the word “credits” than such debts as were payable at a future day. Then how does the statute apply to this case? There was no debt existing between the bankrupts and the defendant at the time of the bankruptcy ; nor was it certain there ever would be one ; for in case of the defendant's bankruptcy or refusal to pay, the holder might have proceeded against the estate

(1) Repealed, see now 46 & 47 Vict. c. 52, s. 38.

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