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1823.

COLE

BEALE.

promised him; but that he merely went there, accompanied by a friend, to see if he should like the climale; and that in the deponent's judgment, the plaintiff's abbence from home and this country, was merely temporary, and not of a permanent nature, and that at the time of quitting England he was in good and solvent circumstances, and did not go abroad to avoid this or any other action or suit, or the payment of his debts-This, the learned Serjeant subunitted, was a complete answer to the application; and more particularly so, as the defendant had merely sworn that he had been informed, and believed that the plaintiff had gone to Jamaica for the purpose of residing there.

The Court were of this opinion; and Lord Chief Justice DALLAS observed, that it was incumbent on a defendant to make out a clear case of perinanent residence abroad, either actual or intended, to entitle him to call on the plaintiff to give security for costs; and that an affidavit, founded on a mere belief, was not sufficient for

this purpose

Rule discharged (a).

(a) See Anonymous, 2 Chit. 152.

Wednesday,

HOLDING V. IMPEY and two others (6).
Feb. 12th.
Where, on a

Mr. Serjeant Pell, on a former day in this Term, obcomunission of tained a rule, calling on the defendants to shew cause sued outagainst the plaintiff, he brought an action of trespass against the commissioners for false imprisonment, and was nodsuited, and they entered up judgment accordingly, and the commission was afterwards superseded, on which another was sucd out, founded on the same act of bankruptey as the first, under which the plaintiff obtained his certificate, and the defendants afterwards charged him in execution for the costs of the aonsuit; Held, that be was entitled to be discharged out of custody, as such costs were proveable under the sccond commission.

(6) See Doswell v. Impey, I Barn. & Cres. 163. S.C. 2 Dow. & Ryl. 350.

1823.

why the plaintiff should not be discharged out of custody in this suit, on the ground that he had become bankrupt HOLDING and obtained his certificate. He founded his motion on

IMPEY: an affidavit, which stated that the plaintiff having committed an act of bankruptcy by lying two months in prison, a commission of bankruptcy was issued against him on the 21st April, 1821, which was superseded on the 2d August following. That on the 7th of that month, another commission was sued out against him, founded on the same act of bankruptcy, and under which he had obtained his certificate. That the plaintiff had brought an action against the defendants; as commissioners of bankrupt, for an alleged false imprisonment under the first commission, which was tried in Trinity Term, 1821; when he was nonsuited, as it appeared that he had not given satisfactory answers to certain questions put to him by the defendants when he was under examination before them; in consequence of which they committed bim to Newgate, by virtue of their authority as such commissioners. That costs having been taxed, they caused judgment of nonsuit to be entered up against him in July following, and in January 1822, charged bim in execution on the judgment for such costs.

Mr. Serjeant Vaughan now shewed cause, and submitu ted, that the plaintiff could not be entitled to his discharge, unless the costs for which he was taken in execution could have been proveable as a debt under the second commission, and under which be had obtained his certificate. Here, the defendants' debt arose not only after the act of bankruptcy on which that commission was sued out, but subsequently to the issuing of the first commission against the plaintiff, and under which the defendants acted as commissioners; and they must, con: sequently, have had notice of an act of bankruptcy previously to their debt having accrued. Although since

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the statute 46 Geo. 3, c. 135, sec. 2 (a), it is not material if the debt is contracted after the act of bankruptcy ; yet it must be contracted before the commission, and without notice of a prior act of bankruptcy. But as this was an involuntary debt upon a judgment against the plaintiff, he cannot be said to have contracted it; and as both commissions issued against the plaintiff were founded on the same act of bankruptcy, the costs could not be proveable under the last; as such act of bankruptcy took place previously to the action brought by the plaintiff against the defendants, and for the costs of which he was now charged in execution at their suit, and of which they must have had notice.

Mr. Serjeant Pell, in support of the rule, was stopped by

The Court, who observed that the usual form of a creditor's deposition on proving a debt was, that the debt was due and owing before the date of the commission, (which was the fact in this case, the first having been superseded, and the judgment of nonsuit having been entered up before the second was issued,) and that it was unnecessary for him to state that he had no notice of a prior act of bankruptcy. Here, however, the costs, for the amount of which the plaintiff was charged in execution, may be considered as part of the original debt,

(a) By wbich it is enacted, that “ in all cases of commissions of bankrupt thereafter to be issued, every person with whom the bankrupt shall have really and bond fide contracted any debt before the date and suing forth of such commission, which, if contracted before any act of bankruptcy committed, might have been proved under such commission, sball, notwithstanding any prior act of bankruptcy may have been committed by the bankrupt, be ad initted to prove such debt, and to be a creditor under such commission, to all intents, and in like manner, as if no such prior act of bankrnptcy had been committed by such bankrupt, provided such creditor had not, at the time of such debt being contracted, any notice of any prior act of bankruptcy by such bankrupt committed.”

1823.

HOLDING

and referrible to the action brought by the plaintiff against the defendants, and under which they had obtained judgment of nonsuit before the commission was sued out, under which be obtained his certificate. These costs were, therefore, clearly proveable under it; and this rule must consequently be made

IMPEY. .

Absolute, but without costs (a).

(a) See Es parte Charles, 16 Ves. 256. Hart, I Bos. & Pul. 134.

S. C. 14 East, 197. Watts v.

MANNING V. Cox and others.

Wednesday,
Feb. 12th.

fraud of his

certain pre

Mr. Serjeant Hullock, on a former day in this Term, lease, given by obtained a rule, calling on the defendants to shew cause a trustee in why the plea of release, pleaded by them in this cause, trust, is void. should not be set aside, and the release of the 20th March, fore, a testator 1821, on which the plea was founded, delivered up to be bequeathed cancelled, on the ground that it had been obtained by mises to a trusfraud. He founded his motion on an affidavit, which the rents for stated that this was an action of covenant brought in the the benefit of name of the plaintiff, against the defendants, for arrears and gave him

power to demise of rent, and not repairing certain premises in the Kent the same for a Road, in the county of Surrey, and which, in 1800, had term, which he been let on lease by Mr. Driver, to one Gordon, for the ceived the

rents, but did term of ninety-four years, at the yearly rent of 35l. That not apply them in 1804, Gordon made his will, and bequeathed his in- of the trust, on

to the purposes terest in the premises to the plaintiff, in trust, to receive which a bill in

equity was filed the rents for the benefit of the testator's children, with against him at

the suit of one of the parties beneficially interested under the will, and a receiver was appointed, who sued the lessees in the name of the trustee for non-payment of rent, and they pleaded a release executed to them by the trustee pending the suit; the Court ordered the plea to be set aside, and the release to be delivered up to be cancelled.

Cox.

1833. with power, before his eldest son should attain the

age

of MASING twenty-four, to demise and lease the same by indenture,

for any term he should think proper. On the death of the testator in 1808, the plaintiff proved his will; and by an indenture, dated the 25th March, 1809, and made between himself, as trustee, of the one part, and the defendants of the other, he demised part of the premises comprised in the will to them for the term of twenty-one years, they covenanting to pay the rent to him and keep the premises in repair ; and they took possession accordingly, and continued to occupy them until 1815, when, with the plaintiff's approval, they were assigned to one Diron, and afterwards, viz. in 1818, by him to Leigh. In the month of April in that year, the plaintiff having received the rents from Lady-day, 1809, and not applied them to the purposes of the trust, one of the infants beneficially interested under the will, filed a bill in Chuncery by his next friend against the plaintiff, for an account of the rents and profits; and prayed that he might be restrained by injunction from receiving them thereafter. The plaintiff, in answer, admitted that he had received 600l, on account of the trust: but he afterwards absconded, and has not since been heard of. That a receiver was consequently appointed, and that Leigh having left the preinises in a bad state of repair, and rent being in arrear, he gave the defendants notice to pay the rent and do the repairs, pursuant to the terms of the lease granted to them by the plaintiff, and on their refusal to do so, he commenced the present action against them in the name of the plaintiff, to wbich they had pleaded the release in question.—Under these circumstances, the learned Serjeant submitted, that it must be set aside ; and more particularly so, as it was not contemporaneous with the assignment made by them to Diron, as it was not dated until March, 1321, and consequently that it had been executed with a view to fraud;

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