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1822.

BURR

CREETHY.

fects should be delivered over to the assignees, after the second execution had been satisfied, the plaintiff's having been abandoned as against their claim. The plaintiff, therefore, should either dispute the bankruptcy, or indemnify the sheriff before he ruled him to return the writ, as the only contest now was between the plaintiff and the assignees.

Mr. Serjeant Onslow now shewed cause, and submitted, that as the defendant's effects were sufficient to satisfy both the executions, and the plaintiff's in fact never having been abandoned, he was, at all events, entitled to a priority rather than the assignees; and the sheriff should have caused bis claim to be satisfied, as well as that of the second creditor ; and the assignees could only be entitled to the residue, after the plaintiff's demand had been deducted. If so, the sheriff would have no difficulty in returning fieri feci.

But, Per Curiam. If the sheriff may be considered as excused by the act of the plaintiff in ordering the officer to withdraw the execution in the first instance, he ought not to be called on to return the writ until he is properly indemnified. If the plaintiff refuses to do so, the assignees may be made a party, should an indemnity be required from them. The residue of the defendant's goods was delivered over to thein, and still continue in their possession, and the plaintiff has admitted the bankruptcy; the contest therefore is between the assignees and the plaintiff; and it would be too much to put the sheriff to the expense of contesting their rights. It does not appear that the plaintiff required the goods to be delivered over to him, or his execution satisfied, whilst they remained in the hands of the sheriff; and, at all events, he lost the priority of his execution, by allowing it to be withdrawn. The proper course to be adopted

2 B

VOL. VII.

1822.

BURR

V. CREETHY.

under the circumstances, appears to be to enlarge the rule for the sheriff to make his return until the parties have gone before the Prothonotary, and he has taken a proper indemnity for him, either from the plaintiff or the assignees, or both, according to his satisfaction.

Rule enlarged accordingly (a).

(a) In Mac George v. Birch, 4 Taunt. 585, where the assignees of a bank. rupt claimed goods taken in execution; and they, as well as the plaintiff in the execution, both refused to indemnify the sheriff; the Court interfered to protect him. So in King v. Bridges, ante, Vol. I. 43. 7 Taunt. 294, they would not compel the sheriff to try a right between two conflicting parties, but compelled the party suing him to indemnify him to the satisfaction of one of the prothonotaries. And in l'enables v. Wilks, ante, Vol. IV. 339, it was held, that a sheriff might apply for a rule to enlarge his return to a renditioni exponas, from Term to Term, if the defendant became bankrupt, unless he were indemnified by the assignees in paying over the money levied under the writ, or the rule for such enlargement were duly discharged.

Monday, GOLDSMITH, the Elder, v. Taylor, a Prisoner. Nov. 18th. Where a priso. The defendant, a prisoner in the custody of the warden ner, on being brought up

of the Fleet, was brought into Court, at the instance of under the com- the plaintiff, under the compulsory clause of the Lords’ of the Lords' Act, 32 Geo. 2, c. 28, s. 16 (a).-On being examined by Act, delivered

Mr. Serjeant Onslow as to the nature of his property, he in a schedule, in which it was delivered in a schedule, in which it was stated that he stated that he was entitled to was entitled to an annuity of 100l. on the death of his no annuity after the death of mother, secured on a freehold estate, his interest in his mother, se

which he had sold to his brother for 10001, six months cured on a freehold estate, before his imprisonment; and he therefore submitted he which he had sold to his brother for 10001. which he had spent extravagantly and improvidently, the Court allowed him to be discharged, on his consenting to amend his schedule, by inserting, that “ he was ready to assign his interest in the estate to the plaintiff (if he had any), and that he would execute an assignment accordingly;" although he was lately remanded by the Insolvent Debtors' Court, for not having satisfactorily accounted for the disposition of his property.

(a) See this clause, Vol. I. 494.

1822.

GOLDSMITH

TAYLOR,

had no property to give up to his creditors. He now stated, that the said sum of 1000l. was paid to him in money and bills, one of which for 2001. he had paid to an attorney, and another for 40l. to the keeper of a tavern in Bow Street; and that he had spent the remainder of the 1000l. improvidently and extravagantly, by keeping horses and carriages. It also appeared that he had been lately brought up in the Insolvent Debtors' Court, and remanded, for not having given a satisfactory account of the disposal of his property.

The learned Serjeant contended that this came within that of Rex v. Perrot (a), where a bankrupt, on a question being put to him as to the disposition of his estate and effects, by the commissioners, stated that he had been extremely extravagant and spent large sums of money :-it was deemed an unsatisfactory answer, and that the cominissioners had a power to commit him. It was therefore submitted, that the prisoner in this case should be compelled to deliver into Coutt a schedule of his estate and effects, in order that if he had any interest in the estate in question, it might be assigned over to the plaintiff.

The Court held, that this was altogether distinguishable from Perrot's Case, where the bankrupt was examined before commissioners under a commission of bankruptcy which had issued against him. Here, the 32 Geo. 2, contains a penal clause; and if a debtor do not deliver in a schedule of his effects, and duly make an assignment thereof for the benefit of his creditors, he is, by the seventeenth section of that statute, liable to transportation for seven years.

On the prisoner's consenting that all his interest (if he had any) to the estate in question might be added to the schedule, which was accordingly done by the secondary,

(a) 2 Burr. 1122.

1822.

GOLDSMITH

and that he was ready to execute an assignment of it to the plaintiff according to the statute, he was, after taking the usual oath, ordered to be

TAYLOR.

Discharged (6).

(6) See Rer v. Curwen, ante, Vol. I. page 494.

Monday, Nov. 18th.

BAYLEY, Demandant; BREMRIDGE, Tenant; ADAMS,

Vouchee.

of acknow

tarial certifi

other neces

A recovery was Mr. Serjeant Lens moved, that the writ of entry in this pass, although recovery, which had been made returnable on the first in the affidavit return of the last Easter Term, might be amended, and Jedgment, no- pass as of this term; on an affidavit, which stated, that cate, and the the vouchee was formerly resident in America, and that

the documents sent there for the purpose of having the sary instruments to per

recovery completed were not returned from thence until fect the same, Demerara had the month of October last, when they were forwarded to at first been improperly

Demerara, where the vouchee had gone; and that in the styled an island, affidavit of acknowledgment, notarial certificate, and all had been struck the other instruments necessary to perfect the recovery, out by some person there,

Demerara had been described as an Island, and that that

word was afterwards struck out with a pen by some percolony" substituted, by son there, and that of Colony" written over it, by way way of interlineation.

of interlineation. On its being further sworn, that it was a mistake, and done inadvertently in the first in. stance, the learned Serjeant took his motion as prayed for, although it did not appear by whom, or at what time the alterations had been effected.

and that of

Fiat.

1822.

Price, Plaintiff, Watkins, Widow, Deforciant.

Tuesday, Nov. 19ih.

Mr. Serjeant Lens moved that the Judge's fiat, (i. e.) The Court re

fused to susthe allocatur, might not pass, upon the acknowledgment of

pend the fiat of this fine, until the defurciant, who resided at Abergaven- afidavit, which ny, should have appeared before one of the Justices of stated, that the this Court, to shew whether she was in a capacity to un- informed and

deponent was derstand the nature or effect of its being levied; or that believed, that

the deforciarit, a commissioner might be appointed to examine her as to (a widow,)

was more than that point. He founded his motion on an affidavit ninety years of which stated, that the deponent was informed that she age, and in an was a widow between ninety and one hundred years of of mind ;-as it age, and that he believed she was in a childish and im- that she was so becile state of mind, and not likely to be capable of knowledgment understanding the operation or effect of any legal instru. was taken,

and as if she ment which she might be desired to execute.

died during the time of the suspension, it

would have the Mr. Justice PARK.-This case came before me at effect of avoid. Chambers, and on all the circumstances being disclosed, ingethe fine alI ordered that the fine might pass, although it appeared afterwards that a cateat, (written in pencil upon the acknowledgment,) was entered against my fiat. It then appeared, that an acknowledgment had been duly taken by the deforciant at Monmouth before two commissioners there, which was certified on oath; but on the objection being made as to the age and incapacity of the deforciant, I desired the parties to apply to the Court. fraud has been practised on her, or she has no interest, the fine may be set aside ; but an application of this description may have a dangerous tendency, as if the passing of the fine be suspended, the deforciant may die before it can be re-ackuowledged, in which case it would be rendered wholly inoperative; and there was no affida

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