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1832.

SUTTON

V. CLARK,

curred by the Plaintiff for not delivering particulars is, the stay of his proceedings. In Burgess v. Swayne the plaintiff had omitted to declare in due time.

Rule absolute.

Jan. 24.

Selby v. Hills.

A petitioning COULBURN Serjt. obtained a rule nisi to discharge

the Defendant out of custody, upon an affidavit that tending com. missioners of a commission of bankrupt having been issued at his bankrupt, is instance, he, as petitioning creditor, attended the court protected from arrest, eundo

eundo of commissioners in Basinghall Street on the 30th of morando et December to propose himself as an assignee, and to If he shows

watch the proceedings; that he set off to return to his that he is on home (Beckenham in Kent) when the proceedings of the his way home, day concluded, and that he was arrested at the suit of

0 the Plaintiff as soon as he had crossed London Bridge. party who arrests to prove a

Jones Serjt. shewed cause, on an affidavit that the deviation.

Defendant was not arrested till two hours after he had left the commissioners' court, nor till after he had called at several places in the city and Westminster, which were in a direction opposite to his residence. Upon which Jones contended, first, that a petitioning creditor attending commissioners of bankrupt had not such an interest in the proceedings as privileged him from arrest eundo et redeundo : Secondly, That the application should have been made to the Court of Chancery; for which he relied on Ex parte List (a), and Kinder v. Williams (6), where it was said, that the Court of King's Bench would not discharge a person in custody by process of the sheriff's

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court oppose

1832.

SELBY

court in a cause afterwards removed into that court, be cause he was arrested while attending commissioners of bankrupt to prove a debt. Thirdly, he contended, that at all events the Defendant could only be privileged in his direct course to and from the court, and not in unnecessary deviations.

HILLS.

Goulburn, in support of his rule, was requested to confine himself to the question of deviation, when he contended that the privilege from arrest having always been supported to a liberal extent, it was for the plaintiff to shew distinctly that the defendant had deviated from his course, and not to leave the Court to collect it by inferences from ambiguous premises. In Lightfoot v, Cameron (a) the defendant was allowed to dine unmolested; and in Willingham v. Matthews (6) Gibbs C. J. said, “ With respect to the insolvent debtors' court being such a tribunal as to privilege a party from arrest, considering that it is a judicature created by the legislature, I think that parties attending the Court must be considered as privileged from arrest.” The same principle was acted on with reference to arbitrators in Spence v. Stuart. (c)

Tindal C.J. This rule must be made absolute. As to the first point, that the petitioning creditor on a commission of bankruptcy does not, when attending the commissioners, fall within the principle which exempts suitors from arrest while resorting to and returning from courts of justice, I think the objection is untenable, and that the defendant, as petitioning creditor, bad as much interest in attending before the commissioners as a creditor attending the insolvent debtor's court to

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1832.

SELBY

HILLS.

oppose the discharge of a debtor. Then, as to the second point, I think this was the Court to which the defendant ought to apply, because the process was issued out of this Court, and we have a right to see that it is not improperly enforced. Willingham v. Matthews is a case in point.

The third is the only question which requires discussion, namely, whether in this case the privilege has been claimed bona fide, or only set up as a pretence to defeat a creditor. Now all the cases say that this privilege is not to be strictly scanned, and I think the affidavit of the Plaintiff does not sufficiently establish that the Defendant was abusing the privilege he claims. It appears that the Defendant was in a line leading to his home, and that throws upon the Plaintiff the labouring oar to shew that the defendant was there improperly. Although two hours had elapsed after he quitted the Court they might have been devoted to refreshment, and the calls, at which the Plaintiff does not depose he was present, might, compatibly with what is sworn, have taken place before the Defendant attended the commissioners.

Park J. I have no doubt that the Defendant, when attending the commissioners' court, going thither, and returning thence, was entitled to the privilege of exemption from arrest. He had an interest in being present, and the bond he entered into as petitioning creditor requires that he shall cause the commission to be duly prosecuted. And it is equally clear that this is the court he ought to apply to to enforce the privilege. As to the alleged deviation from his direct route homewards, the privilege ought to be dealt out with a liberal hand. Lightfoot v. Cameron and Willingham v. Matthews are strong cases to that effect. In answer to an application of this kind the Court must be fully satisfied,

and 1832.

and not left merely to draw an inference that the party was out of his direct course.

SELBY

HILLS.

BOSANQUET J. I am of the same opinion. I think that the Defendant had a sufficient interest in attending the commissioners to protect him eundo, morando, et redeundo, and that this is the proper court to enforce his privilege. The only question is, whether or not he has abused that privilege. He is arrested two hours after he has left the commissioners, on the Surrey side of London bridge in a direct line towards his home. That circumstance calls on the plaintiff, if he would vindicate the arrest, to shew clearly, and not by mere inference, how the two hours were disposed of by the Defendant.

ALDERSON J. It is clear that the Defendant, in attending the commissioners, must be considered as a party concerned in his own cause. And Willingham v. Matthews is decisive to shew that the application for disa charge is properly made to this Court. Upon the last point I have not been without doubt. But I think the circumstance, that the Defendant was in a direct line towards his home, throws it upon the plaintiff to account for the time which had elapsed before the arrest.

Rule absolute.

1832.

Jan. 27.

WOODCOCK v. Nuth.

had

Use and occu- USE and occupation. The Plaintiff sought to repation. De

cover 251. for two quarters' rent alleged to be due fendant, who

ed from the Defendant at Lady-day 1831. under a lease At the trial before Park J., Middlesex sittings after

· Michaelmas term, it appeared that the Defendant had at Lady-day 1829, paid a held the Plaintiff's premises under a lease which exquarter's rent pired at Lady-day 1829; that on Midsummer-day 1829, on Midsummer day 1829,

, the last time he was seen on the premises, he paid deducting 21. 10s. for a quarter's occupation, over and above 101.,

* which he was allowed to retain for repairs. Since that repairs; he was not after- time rent had been paid at irregular periods by one wards seen on Lewis, who occupied the premises. the premises, but the rent

The collector stated that Lewis paid on account of was paid at the Defendant, but assigned no reason for such stateirregular in

ment.
ment

The Defendant, since Midsummer 1829, had

The Defondan tervals by L., who was in resided at Hammersmith, a fact with which the plaintiff occupation for was acquainted. the ensuing

The learned Judge having left it to the jury to say Held, that it whether the Plaintiff had accepted Lewis as his tenant,

correctly a verdict was found for the Defendant, which left to a jury to find whether the lessor Jones Serjt. moved to set aside on the ground of mishad accepted

direction. The Plaintiff by proving the Defendant to nant, and the have been in possession, and to have paid rent, shewed jury having enough to raise a presu

enough to raise a presumption of a yearly tenancy, and found for Den noua fendant, the to cast on the Defendant the burthen of shewing by Court refused what means such tenancy had been determined: Ward to set aside the verdict. v. Mason. (a) In Harland v. Bromley (6) it was held

was

(a) 9 Price, 291.

(6) 1 Stark. N. R. 455.

that

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