ASSIGNMENT. See COVENANT, 1.

ASSUMPSIT.

1. Where A. and B. deposited money in the nands of a stake-holder, to abide the event of a boxing-match between them; and after the battle A. claimed the whole sum from the stake-holder, and threatened him with an action if he paid it over to B., which he nevertheless did by the direction of the umpire: Held, that A. was entitled to recover from him his own stake, as money had and received to his use. Hastelow v. Jackson, E. 9 G. 4. 221 2. A., having a patent for certain spinning machinery, received an order from B. to have some spinning-frames made for him. A. employed C. to make the machines for B., and informed the latter that he had so done. After the machines had been completed, A. ordered them to be altered. They were afterwards completed according to this new order, and packed up in boxes for B., and C. informed B. that they were ready, but he refused to accept them: Held, that C. could not recover the price from B. in an action for goods bargained and sold, or for work and labour, and materials. Atkinson and Others, Assignees, v. Bell and Others, E. 9 G. 4.

277

1. The court will not compel an attorney to pay a sum of money he has received in his character of attorney; he having after the receipt of the money become bankrupt and obtained his certificate. Ez parte Culliford v. Warren, Gent., one, &c. E. 9 G. 4. 220 2. Where a judge's order for taxing an attorney's bill is not obtained until after he has commenced an action for the amount, the defendant is not entitled to the costs of taxation, although more than one sixth is taken off by the master. Jay, Gent, one, &c. v. Coaks, M. 9. G. 4.

BANKRUPT. See ATTORNey.

635

2. A. kept cash with M. and Co., bankers, and accepted a bill drawn by one of the partners in the house of M. and Co., and indorsed by that partner to M. and Co., who discounted it, and afterwards indorsed it for value to S. Before the bill became due, M. and Co. became bankrupts, having funds in the hands of S. more than sufficient to pay

the bill, and having in their hands money belonging to A. When the bill became due, S. presented it for payment to A., who having refused payment, S. paid himself the amount out of the funds of M. and Co. remaining in his hands, and delivered the bill to their assignees: Held, in an action brought by the assignees against A. as acceptor of the bill, that there had been, before the bankruptcy, a mutual credit between the bankrupts and A.; and that the latter was entitled to set off, against the sum due to the bankrupts on the bill, the debt due to him from M. and Co. at the time of their bankruptcy. Bolland and Others, Assignees, v. Nash, E. 9 G. 4. 105 2. Where a creditor obtained judgment by nil dicit against a trader, and thereupon issued a fi. fa., under which the sheriff seized the goods of the trader, who afterwards, and before the goods were sold, committed an act of bankruptcy, upon which a commission issued, and he was duly declared a bankrupt, of which the sheriff had notice, but nevertheless sold the goods, and paid over the proceeds to the execution creditor: Held, that he was not justified in paying over the money, and was liable to be sued for it by the assignees in an action for money had and received.

3.

Quare, whether the sheriff was justified in selling the goods after notice of the bankruptcy. Notley and Others, Assignees, v. Buck, E. 9 G. 4.

160

344

Where a party committed by commissioners of bankrupt, for not answering to their satisfaction, wishes to be again brought before them, he must bear the expense of that proceeding. Ex parte Baxter, T. 9 G. 4. 4. In August 1821, A., a trader, being indebted to B. and C., then in partnership, but about to separate, gave a warrant of attorney to secure payment by instalments to B. alone, who knew that A. was then insolvent. In October A. committed an act of bankruptcy, and in November, at B's desire, he sent goods to the warehouse of B. and C. as a further security for the debt. In December B. and C. dissolved partnership; and the former afterwards received from A. several sums of money on account of the warrant of attorney, and also sold the goods, towards satisfaction of the debt. A commission of bankrupt issued against A. in January 1823, and in November of that year B. died: Held, that A.'s assignees might recover from C. the money paid by A. on the warrant of attorney, by an action for money had and received, and for value of the goods, by an action of trover. Biggs and Others, Assignees of Collier, v. Fellowes, T. 9 G. 4.

402

5. A creditor had obtained judgment by default against his debtor since the statute 6 G. 4, c. 16, s. 108, and the goods having been seized by the sheriff before, but not until after an act of bankruptcy was committed by the debtor, the court refused to compel the sheriff to pay over the proceeds of the sale to the assignees of the bankrupt. In re Washbourn, T. 9 G. 4. 444

6. A. and Co., as brokers for B., sold goods then in their possession to C., which were paid for by a bill drawn by C. and accepted by D. C. ordered A. and Co. to keep the goods in their hands, and sell them if they could make a certain profit. Before the bill became due, D. failed, and A. and Co. applied to C. for security for the bill, and he gave them an order to sell the goods and apply the proceeds in payment of the bill. C. afterwards, and before the goods were sold, became bankrupt. A. and Co. handed over the goods to B., at his request, but he afterwards returned them; and after they were returned, C.'s assignees, having made a demand of the goods, brought trover: Held, that they could not maintain it, for that, after the order given by C. to A. and Co. to sell the goods and apply the proceeds in payment of the bill, they remained in their hands subject to that charge; because A. and Co. must be presumed to have asked security as agents for B., whose ratification of their act for his benefit might also be inferred. Bailey v. Culverwell, T. 9, G. 4. 448

7. A., B. and C., together with others, were part-owners of a ship engaged in the whale fishery. The usual mode of managing the cargo was, that, on the arrival of the vessel at her homeward port, the whalebone was taken into the possession of B. and sold by him, and the proceeds were applied in part of discharge of the expenses of the ship. The blubber was deposited in a warehouse rented of C. by the owners of the ship, and the oil produced from it was then put into casks, each owner's share being weighed out and placed separately in the warehouse, in casks marked with his initials. After the division, the practice was for the warehouseman to deliver to the order of each part-owner his share of the oil,unless notice was given by the ship's husband that the part-owner's share of the disbursements had not been paid. In that case the warehouseman used to detain the oil till the ship's husband's demand had been satisfied. The ship having arrived from her voyage in 1825, the above course was followed. The share weighed out and set apart for A. was twenty-nine tons, which was stowed in the warehouse in casks, and which had A.'s initials put on them. In January, 1826, A. became bankrupt: twenty tons of the oil had been delivered to A. before his bankruptcy; the remaining nine tons remained in the warehouse at the time of the bankruptcy. In January 1826, the warehouseman had orders from C., the ship's husband, not to deliver to A. the remaining oil, as his share of the disbursements of the ship had not been paid: Held, in an action of trover brought by the assignees of A. against C. for the residue of A.'s oil, that the other part-owners had originally a lien on it for his share of the disbursements of the ship; and that this right was not divested by the separation of A.'s share from the residue, and placing it in casks marked with his name. Holderness and Another, Assigners, v. Shackell, M. 9, G. 4. 612 Where the assignees of a bankrupt enter

9.

1.

the premises of a third person, to seize goods which were the property of the bankrupt, it is not necessary that an action against them, should be brought within three months after the fact committed, the act of the assignees not being done "in pursuance of the statute," within the meaning of the 6 G. 5, c. 16, s. 44. Edge v. Parker, M. 9, G. 4. 697

Judgment was entered up on a warrant of attorney given by two joint-traders, and a fi. fa. issued, returnable on the 2d of May. On the first of that month, the sheriff's offcer, received from the defendants the money directed to be levied. On the 2d of May one of them committed an act of bankruptcy and the other on the 5th. On the 11th a commission of bankrupt issued, and on the 19th the sheriff paid over the money to the execution-creditor. In an action by the assignees: Held, that he was entitled to retain it, not being a creditor having security at the time of the bankruptcy. Morland v. Pellatt, M. 9, G. 4.

BAPTISM.

See EVIDENCE, 26.

BERWICK-UPON-TWEED.

See RATE.

BILL OF EXCHANGE.

See EVIDENCE, 9.

722

36

To an action upon a joint and several promissory note of A. and B., the latter being a mere surety, brought by payee against the administrator of B., the defendant pleaded that the cause of action did not accrue within six years, upon which the plaintiff took issue. The plaintiffs proved, that within six years, and during the lifetime of B., A. made a payment on account of the note; B. afterwards died: Held, that such payment operated as a new promise by B. to pay according to the nature of the instruments, and that his administrator was liable on the note. Burleigh and Others, Executors, V. Stott, Administratrix, E. 9, G. 4. A. kept cash with M. and Co., bankers, and accepted a bill drawn by one of the partners in the house of M. and Co., and indorsed by that partner to M. and Co. who discounted it, and afterwards indorsed it for value to S. Before the bill became due, M. and Co. became bankrupts, having funds in the hands of S. more than sufficient to pay the bill, and having in their hands money belonging to A. When the bill became due, S. presented it for payment to A., who having refused payment, S. paid himself the amount out of the funds of M. and Co. remaining in his hands, and delivered the bill to their assignees: Held, in an action brought by the assignees against A. as acceptor of the bill, that there had been before the bankruptcy a mutual credit between the bankrupts and A.; and that the latter was entitled to set off, against the sum due to the bankrupts on the bill, the debt due to him from M. and Co. at the time of thei

105

3. A member of a joint-stock company was employed by the company as their agent to sell goods for them, and received a commission of two per cent. for his trouble, and one per cent. del credere for guaranteeing the purchaser. Having sold goods on account of the company, he drew on the purchaser a bill of exchange, payable to his, the drawer's own order, and after it had been accepted, he indorsed it to the actuary of the company, and the latter indorsed it to another member, who was the managing director, and who purchased goods for the company: the company were then indebted to him in a larger amount than the sum mentioned in the bill. The acceptor having become insolvent before the bill became due, the drawer received from him 10s. in the pound upon the amount of the bill by way of composition: Held, first, that the indorsee, being a member of the company, could not sue the drawer on the bill, inasmuch as it was drawn by the latter on account of the company; and that he could not recover the sum received by the drawer on the bill, because that money must be taken to have been received by him in his character of a member of the company, and not on his own account. Teague v. Hubbard, T. 9 G. 4. 345 4. The indorsee of a bill of exchange dishonoured by the acceptor, being ignorant of the place of residence of one of the indorsers, employed an attorney to give notice to him and the other prior indorsers; the attorney, after inquiry, having received information of this indorser's place of residence, on the following day consulted his client, and on the third day sent notice of the dishonour of the bill: Held, that the notice was sufficient. Frith v. Thrush, T. 9, G. 4. 387 5. In an action by the indorsee against the drawer of a bill, it appeared by the plaintiff's case that he had received it from the acceptor in discharge of a debt due from him. For the defendant it was stated, that the bill was accepted in discharge of part of a debt due from the acceptor to the drawer; that it was indorsed and delivered to the acceptor, in order that he might get it discounted; and that he delivered it to the plaintiff upon condition, that if he procured cash for it, he might retain out of it the amount of the debt due to him from the acceptor; but that he never did get cash for the bill: Held, that the acceptor could not be examined to prove these facts; for, although he was uninterested as to the amount sought to be recovered on the bill, he was interested as to the costs, against which he would have to indemnify the defendant if the plaintiff obtained a verdict. Edmonds v. Lowe, T. 9, G. 4. 6. A bill of exchange was drawn by A. upon B. for the accommodation of C., who indorsed it for value to D. Neither A. nor C. had any effects in the hands of B. The bill was dishonoured by B. Held, that the drawer was entitled to notice. Norton v. Pickering, M. 9, G. 4.

407

610

a house in London, payable to order, was indorsed by the payee generally to A., and by him in these words: "Pay to B. or his order for my use." B. applied to his bankers to discount the bill, and they, without making any inquiry, did so, and applied the proceeds to the use of B. Held, that the indorsement was restrictive; that the property in the bill remained in A., and that he was entitled to recover the amount of the bill from the bankers. Sigourney v. Lloyd and Others, M. 9, G. 4.

BILL OF MIDDLESEX.
See PLEADING, 11.

BOND.

See SIMONY.

622

1. In an action upon a bond given to bankers, conditioned for the fidelity of a clerk, entries of the receipt of sums of money made by the clerk in books kept by him in the discharge of his duty as clerk, are, after his death, evidence against his sureties of the fact of the receipt of the money. Whitnash and Another v. George and Another, M. 9, G. 4.

2.

556

The condition of a bond recited, that A. was indebted to B. in various sums of money, which were all stated in pounds sterling, and money of a smaller denomination, and that the bond was given to secure payment of those sums. In the obligatory part of the bond the word pounds was omitted; it merely stated, that the obligor became bound in 7700 without stating what description of money: Held, that from the condition the intent manifestly was, that the obligor should become bound in 7700 pounds, and that the word pounds might therefore be supplied. Cole, Administrator, v. Hulme, M. 9, G. 4.

568

Where the owner of a ship, by an instrument called a charter-party, appointed G. B. to the command, and agreed that, the ship being tight, &c., and manned with thirtyfive men, G. B. should be at liberty to receive on board a cargo of lawful goods (reserving 100 tons, to be laden for account of the owner), and proceed therewith to Calcutta, and there reload the ship with a cargo of East India produce, and return therewith to London; and upon her arrival there and discharges, the intended voyage and service should end. And the owner further agreed, that the complement of thirtyfive men should, if possible, be kept up; that he would supply the ship with stores, and that she might be retained in the said service twelve months, or so much longer as was necessary to complete the voyage. In consideration of which, G. B. agreed to take the command, and receive the ship into his service for twelve months certain, and such longer time as might be necessary to complete the voyage; and pay to the owner for the use and hire of the ship after the rate of 25s. per ton per month, of which 1000l. was to be paid on the execution of the charter-party, and 2000. by two approved bills on Calcutta, one of which was to be payable one month, and the other two months, after her arrival there; the residue to be paid or secured to the satisfaction of the owner on the arrival of the ship at London, and previous to commencing the discharge of her homeward cargo. (Certain other stipulations for payment of freight, if the ship were detained in India, were then made.) And it was further agreed, that G. B. should remit all freightbills for the homeward cargo to B. B. and Co. in London, who should hold them as joint trustees for the owner and G. B.; that they should first be applied to the payment of the balance of freight due from G. B., and the surplus, if any, be handed over to him. It was then provided, that the owner should have an agent on board, who was to have the sole management of the ship's stores, and power to displace G. B. for breach of any covenant in the charterparty, and appoint another commander. C. and Co. in Calcutta, having knowledge of this instrument, shipped goods on board the vessel for London, which were never deli

The general rule of law is, that a debt cannot be assigned. The exception to that rule is, that where there is a defined and ascertained debt due from A. to B., and a debt to the same, or a larger amount due from C. to A., and the three agree that C. shall be B.'s debtor instead of A., and C. promises to pay B., the latter may maintain an action against C. But in such action it is incumbent to show, that, at the time when C. promised to pay B., there was an ascertained debt due from A. to B. Fairlie v. Denton and Another, T. 9 G. 4.

CHURCH. See BURIAL.

CHURCHWARDEN. See MANDAMUS, 2.

COLLECTOR.

See DISTRESS, 3.

395

A local act for enlarging, cleansing, paving, and lighting the streets, &c., in the city of London, authorised the commissioners to order a rate in the several wards of the city of London, to be made by the aldermen and the major part of the common councilmen, upon all persons who inhabited, held, occupied, possessed, or enjoyed any land, house, shop, warehouse, &c., or other tenement or hereditament within the said several wards, and who, by the laws then in being, should be liable to be rated to the relief of the poor. By another clause, it was made lawful for the alderman and the major part of the common-councilmen of each ward, at a court of wardmote to be holden for the choice of ward officers, to return to the wardmote the names and places of abode of a competent number of substantial inhabitants of such ward, of whom so many as the alderman, &c., should think fit and direct, not exceeding half the number of persons so returned, should be so chosen at the said wardmote to be collectors of the said rates and assessments for one year: Held, that the word inhabitant in the latter clause meant resiant; and, therefore, that one of the several partners in a commercial establishment who occupied a house for the purpose of his business in the ward, but who resided elsewhere, was not liable to serve the office of collector of the rates. Donne v. Martyr, E. 9 G. 4. 62

COLONIAL COURT.
See DEBT, 1.

COMMENCEMENT OF ACTION. See EVIDENCE, 9. PLEADING, 13.