DOE

v.

DAVIDSON.

such like, that he should continue to enjoy the same; it goes no farther; it does not establish the proposition insisted on in argument, which ought to be made out by clear words. The only argument of any weight is this, that the lord has by agreement diminished his own rights by accepting a statutable release of the right of common. I answer, that the lord considered that in the compensation which he received for those rights by the quantum of land which was set out to him. For these reasons I think there ought to be judgment for the defendant.

Postea to the defendant.

1813. Nov. 23.

[195]

WOOD AND ANOTHER v. DODGSON.†
(2 M. & S. 195—201.)‡

Where upon a dissolution of partnership between three partners, two of the three assigned to the other all their shares in the partnership debts and effects, and the other covenanted to pay all debts then due from the partnership, and to indemnify the two from the payment of the same, and from all actions and costs by reason of the nonpayment of the same, and afterwards became bankrupt, and a commission issued against him, under which he obtained his certificate, and afterwards the holder of a bill accepted by the three partners, and due before the dissolution of the partnership, sued the two, and they were obliged to pay the bill: Held, that by stat. 49 Geo. III. c. 121, s. 8, the certificate might be pleaded in discharge of an action brought by the two against the other upon his covenant.

COVENANT the plaintiffs declare, that by indenture of the 6th of May, 1811, made between Dodgson (the defendant) of the first part, and the plaintiffs, John Wood the elder, and John Wood the younger, of the second and third part, after reciting that in 1804 Dodgson and the Woods had agreed to become partners in the business of warehousemen for ten years, and had continued in such partnership to the date of the indenture, and that they had agreed to dissolve the same on certain conditions, it was witnessed, that in pursuance and in part performance of the

This case is retained, as it is still cited in modern editions of bankruptcy and other works as applicable to the present law. But,. having regard to the wide language

of the 37th section of the Act of 1883, it is hard to see how the point would be arguable even in the absence of a decided case.-R. C.

Also reported 1 Rose, 47.

said agreement, the said parties did dissolve the same; and that in farther performance, &c. and in consideration of the sum of 3001. a-piece to be paid to the Woods by Dodgson, and of the covenant by Dodgson for indemnifying them against all the debts and engagements of the said partnership to the date of the said indenture, they the Woods did assign and set over to Dodgson all their shares and interests in the stock in trade, ready money, debts outstanding, and effects belonging to the partnership; and also all the dividends on certain debts therein specified, together with all the books of accounts, &c.; to hold the same to Dodgson as his own. And Dodgson did thereby covenant with the Woods that he would pay, satisfy, and discharge all and all manner of debts then due and owing from the partnership, and would indemnify *them from the payment of the same, and also from all actions and costs which might accrue to them by reason of the non-payment of the same, &c. The plaintiffs then assign for breach, that after the making of the indenture, to wit, on the 16th of February, 1813, one Wylie sued the plaintiffs upon a bill of exchange, dated the 4th of July, 1810, drawn by Wylie before the time of making the indenture, upon and accepted by the partnership for the sum of 155l., payable at six months after date, and which bill was accepted by the partnership for a partnership debt due before the time of making the indenture; and such proceedings were had that afterwards, to wit, on the 13th of April, 1813, the plaintiffs were obliged to pay and did pay to Wylie 1217. 18s. 6d. in satisfaction and discharge of the sum of money in the said bill of exchange mentioned, and for interest thereon, and for the costs and charges of the said suit; by means of which the plaintiffs were and still are damnified, &c.; yet the defendant hath refused to pay, &c.

The defendant pleads (inter alia) that on the 1st of January, 1812, he was a trader, &c., and afterwards, to wit, on the 15th of April, 1812, became bankrupt, and a commission was issued against him; and then sets forth the proceedings under the commission, and that on the 5th of June following he obtained his certificate; and that the indenture mentioned in the declaration was made before the 15th of April aforesaid; and although the

WOOD

v.

DODGSON.

[ *196

WOOD

v.

DODGSON.

[197]

[199]

[ *200 ]

plaintiffs did pay 1217. 18s. 6d. to Wylie after the said 15th day of April when the defendant became bankrupt, and the commission issued as aforesaid, yet that immediately from and after the time of the said payment the plaintiffs *were enabled to prove, and might have proved, the said sum of 121l. 18s. 6d. under the said commission, without disturbing any dividend or dividends already made.

Demurrer and joinder.

After argument:]

LORD ELLENBOROUGH, Ch. J. :

This is quite a new case, and depends entirely upon the words of the statue, but I cannot help thinking it falls within them. Before the statute, this debt could not have been proved under the commission. The statute does indeed seem to impose a hardship on the plaintiffs, but at the same time they will not be in a much worse situation than if they were to pursue a fruitless suit. The words of the statute are "where any person shall be surety for or liable for any debt of the bankrupt." Here the plaintiffs have assigned all their interest in the partnership effects in consideration of a covenant of indemnity on the part of the bankrupt, which left them still liable as before to the original creditors of the partnership; they were liable at law as codebtors with the bankrupt for his and their own debt, but in equity he was solely liable, and they were sureties; for by the covenant he became, as between the parties to the covenant, the principal debtor, the debt was his debt, although as to other parties the plaintiffs still remain liable, and therefore when they paid this debt, they paid it in his discharge. I cannot therefore say that this case does not fall within the Act of Parliament, which does not merely contemplate legal, but equitable liability.

LE BLANC, J.:

The words "liable for any debt of the bankrupt" are large enough to comprehend this case; *and we are to see that the case falls within the remedy which the Act proposed to hold out in favour of bankrupts. Before the Act the original debt would

have been barred by the certificate, and the remedy proposed, seems to have been, that when any person at the issuing of the commission should be surety for or liable for the original debt of the bankrupt, the bankrupt should be relieved in the same manner from all claims of such person arising out of the original debt, although the cause of action arose after the bankruptcy. Where the words therefore are large enough, and it appears that the remedy was intended, I rather think we ought to give effect to it.

BAYLEY, J.:

The intention of the Legislature, at the same time that they relieved the bankrupt was to confer a benefit also on the surety, or person who was liable for the debt of the bankrupt. The principal creditor might have proved under the commission, or might have resorted to the surety without proving under the commission; therefore, before the Act he might have compelled the surety to pay the whole amount, without the surety's having any benefit under the commission. This clause therefore was intended to remove that inconvenience, and to give to the surety the power of obtaining a dividend in respect of his debt. this case, if the plaintiffs have let slip their time by not making so early a claim as they might, that was their own fault; because they ought to have known that this was an outstanding debt, for which the bankrupt's estate was liable.

DAMPIER, J.:

In

It seems to me that this case falls within the words of the Act. As before the Act the surety was thrown on the future estate of the bankrupt, the Act by allowing him to prove on the bankrupt's estate, may be a benefit both to the bankrupt and the surety; on the other hand, it may happen that the surety is not compelled to pay the money until the whole estate is gone. It is to be presumed that the Legislature balanced these inconveniences, and determined upon the whole to give a benefit to the bankrupt, by putting the surety upon the bankrupt's estate. I think we cannot get out of the Act.

Judgment for the defendant.

WOOD

v.

DODGSON.

[201]

1813. Nov. 24.

[202]

[ *203 ]

COOPER v. JONES.

(2 M. & S. 202-204.)

The Court will not compel the marshal to affile of record a writ of habeas corpus cum causâ, by virtue of which a person is committed to his custody in execution.

A RULE nisi was obtained calling on the defendant (the marshal) to affile of record a writ of habeas corpus cum causâ, by virtue of which Charles Cooper (the defendant in an action of Wood v. Cooper) was brought before a Judge of this Court, and thereupon committed by him to the custody of the marshal in execution at the plaintiff's suit in an action commenced and prosecuted by him against the said C. Cooper in the Common *Pleas. The affidavit in support of the rule, stated that a demand of the writ had been served on the marshal, and the expenses tendered, to which the marshal said, that he would send an account of the expenses; and it also stated that notice of this motion had been served on the marshal, and that since that the file of writs of habeas corpus cum causâ had been searched at the office of the secretary of this Court, but that the writ in question was not affiled of record.

The Attorney-General shewed cause, and objected, first, that it was not sworn that there ever was such a writ; and secondly, that if it had been, it was not the practice to affile such writ of record: there was not any place appointed for filing it of record.

Barnewall, in support of the rule, stated its object to be to enable the plaintiff to prove an allegation in a declaration against the marshal, for an escape out of execution; and he relied on the words of Lord ALVANLEY in Turner v. Eyles, "that the plaintiff is to enter it of record, if he wants to avail himself of the commitment; and on his application, the Court of King's Bench would compel the marshal to assist him in making this entry." And as to the case of Wigley v. Jones, where it was held not to be necessary to enter it of record, he said that that 5 East, 440.

† 3 Bos. & P. 461.