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1822.

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ADAMSON.

been discharged in point of law, it would appear on the face of the proceedings in the Insolvent Debtors' Court; SUMMERSETT and if all had been done there which was requisite, before he could obtain such discharge, it might have been easily shewn by the party by whom the objection was raised. It has been stated, that the question is not whether the property was vested absolutely in the assignees of the plaintiff, but whether it was so far divested out of him by his own admission, as to preclude his right to sustain the present action. I think it cannot be considered so conclusive, as to entitle the defendant to have a nonsuit entered. Generally speaking, an admission by a party must be taken to weigh most strongly against himself; but that must depend entirely on his own knowledge, and cannot be mixed up with matter of law. That must appear from the legal proceedings themselves. It is too much for the Court to say, that from the bare admission of the plaintiff, unaccompanied with any other proof, that it must be presumed that he had been properly or legally discharged. The property would still vest in him, unless it had been legally divested; and if so, it would become the property of his assignees. So, if the terms of the statute had not been regularly complied with, the property would still remain in the plaintiff; and it does not appear that there has been any intervention whatever by his assignee, or even that any has been appointed. By the thirteenth section of that statute, a debtor charged in execution for any sum not exceeding 1007., may exhibit a petition to any Court of Law, certifying therein the cause of his imprisonment, and setting forth in a schedule a just and true account of all his real and personal estate at the time of his petitioning, and of all incumbrances and charges affecting the same; and also the state of his effects at the time of his first imprisonment, and the securities, &c. relating thereto, on giving fourteen days' previous notice of such pe

1822.

SUMMERSETT

V.

ADAMSON.

tition to the creditors, at whose suit he is charged in execution; and the Court, after having administered the oath, as therein prescribed, to the prisoner, may thereupon order an assignment to be made on the back of the petition, of his estate and effects, to be conveyed to the creditor, who may thereupon take possession, and sue in like manner as assignees of commissioners of bankrupt; and no release of the prisoner subsequent to such assign ment can be pleaded in bar of any action which shall be commenced by the assignee of such prisoner; and the Court is thereupon to make a rule for his discharge, and the assignee is to make sale of his estate and effects, and make a dividend accordingly amongst the other creditors, as is prescribed by the statute. Can the Court, therefore, take it for granted, that all these proceedings have been regular, merely because a witness, on his crossexamination, said that the plaintiff told him that he had been discharged under that statute? The defendant should have shewn, not only that the plaintiff had been divested of his property, but that it was duly vested in his assignees; as their right depended not only on an assignment being duly made to them, according to the terms of the statute, but it must be followed up by absolute possession. I abstain from giving any opinion as to whether, in a case where an assignee does not interpose, an insolvent may be entitled to sue in his own name. I agree with my brother Taddy, as to the distinction he has drawn between this case and that of Brown v. Rivers; but as it does not appear here that the property of the plaintiff was ever assigned to assignees under the statute, or that they have interposed, I think that he was entitled to bring this action, and that he might recover in his own right, and not be considered as a trustee for his assignee; for if the property was vested in them, it was incumbent on the defendant to have produced the assignment at the trial.

v.

ADAMSON.

Mr. Justice PARK.-I am of the same opinion. The 1822. distinction has been very properly adverted to by my SUMMERSETT Lord Chief Justice; and the Court is not to go at random, and take an admission, or confession of a party, as conclusive evidence against him on a question which involves law as well as fact. Here it is quite clear, that the defendant iutended to rely on the circumstance, that the plaintiff could not adduce a title on which he could sustain the present action: that came out on the cross-examination of one of the witnesses for the latter; and when he stated that he had heard the plaintiff say that he had been discharged under the Lords' Act, the defendant should have been prepared to prove that he was duly discharged according to the provisions of that statute. I am therefore of opinion, that there is no foundation in the objection which has been taken, and consequently, that the plaintiff is entitled to retain his verdict.

Mr. Justice BURROUGH.-It has been contended by my brother Taddy, that the admission made by the plaintiff to the witness, and which was elicited from him on his cross-examination, tends to divest the former of his property, so as to disable him to maintain this action. But it was not shewn at the trial, that the requisites of the statute 32 Geo. 2, c. 28, had been complied with, so as to vest such property in his assignees. If it had, it might have operated as a stay of proceedings.

Rule discharged.

1822.

Tuesday, Nov. 19th.

ST. JOHN V. CHAMPNEYS, Bart.

By the statute MR. Serjeant Lawes, in the last Easter Term, viz. on

53 Geo. 3. c.

in contained, it

141. s. 2, and the 9th May, obtained a rule, calling on the plaintiff to schedule there shew cause why all the several proceedings upon the judgment which had been signed in this cause should nesses shall be not be staid, and why the annuity granted by the defendant and his wife to the plaintiff should not be set

is required, that the wit

described in

the memorial

and G.

H., of ;

witnesses to the deeds for se

curing the pay

ment of an annuity were at

tornies' clerks

:

Held, that they were properly described

as E. F. and

of an annuity, aside; and why the deeds, whereby the said annuity was as E. F., of secured, should not be delivered up to be cancelled, and and where the the said judgment vacated ;-on the grounds, first, that part of the consideration money for which the annuity was given had been retained; and, secondly, that the requisites of the statute 53 Geo. 3. c. 141, s. 2 (a), had not been complied with in two instances, and that the memorial was consequently defective; first, in not stating the names of all the persons interested, and by whom the annuity was to be beneficially received; and secondly, in not stating the proper description or place of abode of the witnesses to the said several deeds and securities. It appeared from the affidavit of the defendant, and others on which the motion was founded, that previously attorney; and to 1818 he had been recommended to Messrs. Howard that it was not and Gibbs, to obtain a sum of money by way of annuity. as of their resi- That in the month of July in that year he and his wife, dence or place through their means, had granted an annuity to the plaintiff, secured by a bond and warrant of attorney to

G. H., clerks to E. N., of C. street, in the county of M., being the place where the latter carried on his bu

siness as an

necessary to

describe them

of abode.

(a) By which it is enacted, "that within thirty days after the execution of every deed, bond, instrument, or other assurance, whereby any annuity or rent-charge shall, from and after the passing of that act, be granted, for one or more life or lives, or for any term of years or greater estate determinable on one or more life or lives, a memorial of the date of every such deed, bond, instrument, or other assurance, of the names of all the parties and of all the witnesses thereto, and of the person or persons for whose life or lives such annuity or rent-charge shall be granted, and of the person or persons by whom the same is to be beneficially received, the pecuniary

enter up judgment thereon.

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ST. JOHN

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money was not paid to him, but to Messrs. Howard and Gibbs, who deducted a commission at the rate of 97. per CHAMPNEYS. cent. and placed the remainder to his credit on account. That the plaintiff was not the only person by whom the annuity was to be beneficially received, as twelve others were also interested; and that in the memorial of the annuity the witnesses to the warrant of attorney and other instruments or securities were described as follows, viz. Thomas James Denkin, James Felton Cooke, clerks to Mr. Edward Howard, of Cork Street, Burlington Gardens, in the parish of St. James, Westminster, in the county of Middlesex.

Mr. Serjeant Vaughan in the last Term, viz. on the 10th June, moved, that this rule might be suspended, as

consideration or considerations for granting the same, and the annual sum ór sums to be paid, shall be enrolled in the High Court of Chancery, in the form or to the effect following, with such alterations therein as the nature and circumstances of any particular case may reasonably require.

Date of

Nature of

Name or names Person or perof person or persons for whose sons by whom Names of Names of annuity or rent life or lives the instrument. instrument. parties. witnesses. charge to be annuity or rent beneficially re-ed. charge is grantceived.

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Otherwise

every

such deed, bond, in strument, or other assurance shall be

null and void, to all intents and purposes."

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