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598

Superior Courts: Vice-Chancellor Wigram.-Exchequer.

April 22. Sir James Wigram, V. C., now de- | think, on reading that case, that the Lord livered judgment as follows:-This case is Chancellor did so on the ground suggested by manifestly one, merely one of form, and of Dickens, namely, that the insolvent or bankmore or less expense. It is clear that the as- rupt remains a party, not in name only, but signees, although at liberty to drop the suit, liable for costs. In Ewer v. Atkinson, 2 Cox, have not done so, but have adopted it. They 393, three persons were made parties; the might have commenced a new suit, and then three filed the bill, and the three became bankthey might, as a matter of course, have ex-rupt. Application was made by the assignees amined the insolvent as a witness, saving just for leave to examine one of the three. The exceptions. Having, however, thought proper Master of the Rolls, in that case, after observto adopt the suit, they will have to take the ing that the bankrupt was clearly a good witconsequences of doing so. The question is, ness, ordered the original bill to be amended whether the exclusion of the insolvent's evi- by striking out the name of the bankrupt whom dence is one of those consequences of the the assignees desired to examine, and that adoption by them of the original suit--whether being done, the assignees should be at liberty the insolvent, upon these pleadings, is, for any to examine the bankrupt as a witness in the purpose, to be considered as a party. If he suit. The Master of the Rolls thought that the is, he cannot be examined; if he is not, then regular course, and I cannot think the right to he is a competent witness for the assignees in examine a witness depends upon the question their supplemental suit. First, then, is he a whether he was a sole plaintiff, or whether party? Will he be liable for the costs? Now, there were others joined with him as cothe practice is well settled, that where a sole plaintiffs. If, however, in this case, the plainplaintiff becames bankrupt, and his assignees tiffs were to amend the bill by striking out the do not choose to adopt the suit, the defendant name of the insolvent, there would then be no may dismiss the bill, but without costs. Wheeler cause in existence. It has been said, indeed, v. Malins, 4 Mad. 171; and Lord Hunting- by Mr. Bagshawe, that if the insolvent is not a tower v. Sherborn, 5 Beav. 380, are authorities party, a special application would not be necesfor that proposition. And it has been admitted sary. If, however, I were at liberty to act upon by the defendant's counsel, that the insolvent my own opinion, I should not be deterred by does not remain a party upon the record as to that observation from making the order prayed any demand for costs in the cause. Then, as at once. It is quite enough to show that a to his interest in the result of the suit, it ap- special application is necessary, inasmuch as no pears that all the interest and liabilities of the case has occurred in which the order has been insolvent have been transferred to his assignees. made, although the case must be one of comThen, does he remain a formal party to the suit? mon occurrence. I think, therefore, that the It is admitted that his name must remain in the proper course will be, not to make such an original suit, and that all future orders and order as that which is asked, as, by doing so, decrees will be entitled in the original suit; but I should be opposing the order of the Lord this does not appear to answer the question. Chancellor, and that of the Master of the Rolls; The original cause was instituted by, and in the but I strongly recommend an application to the name of the insolvent, and his name will still Lord Chancellor, who, probably, may think it be used therein as a means of describing that a fit case in which to make the order. suit; but the question is, whether the original suit is not merged in the supplemental, and the insolvent as completely discharged as if the assignees had filed an original bill. Although, for the purpose of describing the original suit, the name of the insolvent must be still used, he will not have to be served with any proceed- RAILWAY COMPANY.-LETTER OF APPLICAing in the cause, nor, in the event of his death, will his personal representatives be necessary parties to any future proceedings. In the absence of authority upon the point, my conclusion would have been, that the insolvent had ceased to be a party, and that the assignees had, in truth, suppressed the proceedings in the original suit, and that nothing remained but the supplemental suit. I do not, however, mean to go beyond the case before me, nor to say what my decision would be in the possible case of the bankruptcy being disputed. Robinson v. Southgate, 5 Hare, 223. The remaining question is, how far the present case is affected by the decisions in Hewatson v. Tookey, and Ewer v. Atkinson? In the former of these cases, Sir Lloyd Kenyon had made an order similar to the one now asked, which the Lord Chancellor had discharged. I cannot but

Motion refused, with costs.

Exchequer.

Vollans v. Fletcher. Trinity Term, May 26, 1847.

TION.-LETTER OF ALLOTMENT.-STAMP.

A party applied by letter for shares in a projected railway company, and received in reply a letter, stating that ten had been allotted to him, and that he must pay the deposit into a banker's named by à certain day, or the committee might cancel the allotment: Held, that these letters were admissible in evidence without a stamp. ASSUMPSIT for money had and received for the plaintiff's use: Plea, non assumpsit.

At the trial before Pollock, C. B., it appeared that the action was brought on the authority of Walstab v. Spottiswoode, 15 M. & W. 501; against a managing director of a projected railway company, which was afterwards abandoned, to recover back the sum of 21., being the amount of a deposit paid by the plaintiff on

Superior Courts: Exchequer.-Court of Review.

599

Robinson v. Drybrough, 6 T. R. 317, says, that it was "thus particularly penned to obviate any objection which ingenuity might raise to creep out of it."

ten shares allotted to him. The plaintiff proposed to give in evidence the following letters, "To the Provisional Committee of the Birmingham, West Bromwich, Wednesbury, and Walsall Junction Railway. "Gentlemen,-1 request that you will allot me 30 shares of 201. each, in the above-named company, and I hereby undertake to accept the same or any less number you may allot me, to pay the deposit of 21. 2s. per share thereon, and to sign the parliamentary contract and sub-certain terms, which must be complied with scribers' agreement when required.

"J. W. T. VOLLANS."

To that letter the following answer was

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"In default of payment of the above-named deposit by the day mentioned, the committee reserve the power of cancelling the allotment without notice.

"This letter, with the banker's receipt, must be exchanged for scrip certificates, which will be granted upon your executing the subscribers' agreement and parliamentary contract, without which no person will be recognized as a subscriber or be entitled to any interest in the undertaking.

"We are, Sir, your obedient servants, "W. H. REECE, Solicitor.

"W. R. KETTLE, Sec. pro temp." (Here followed the names of several bankers.) It was objected, on behalf of the defendant, that the above letter amounted to an agreement, and should have been stamped accordingly.

The learned judge was of that opinion, and nonsuited the plaintiff, reserving leave to move to enter a verdict for him. A rule nisi having been granted,

Martin, in support of the rule. The letter of application and the letter of allotment do not constitute the contract, which only arises upon the plaintiff's acceptance of the shares allotted. His letter contains a request for shares, to which the company reply by offering some upon

before there can be any valid contract between the parties. Until the payment of the deposit into the banker's, there is no evidence of the plaintiff's assent to accept the shares upon the conditions stated. A mere proposal in writing for a contract does not require a stamp, Peninfold v. Hamilton, 2 Stark. 475; Edgar v. Bluk, 1 Stark. 464; Drant v. Brown, 3 B & C. 665. In this case, if the plaintiff had refused to pay the deposit into the bank by the day named, it is clear that there would have been no contract. This clause of the Stamp Act was under consideration in Vaughan v. Brine, 1 Man. & G. 359, and Beeching v. Westbrook, 8 M. & W.

411.

Pollock, C. B. We are all of opinion that no
stamp was requisite. The true test is this, was
the plaintiff at liberty on receiving the letter of
allotment to refuse to accept the shares on the
We think he was: and
terms mentioned.
therefore the rule must be absolute to enter a
verdict for the plaintiff.

Alderson, Rolfe and Platt, B.'s concurred.
Rule absolute.a

Court of Keview.

Exparte Hall, in re Carey. July 5 & 21, 1847.

OFFICIAL ASSIGNEE. OMISSION.-COSTS.

A proof of a debt having been made and a dividend declared, but the name of the creditor having been omitted in the dividend list, whereby the whole estate had been divided among the other creditors, the official assignee was held to be personally answerable for the amount of the proof to which the creditor would have been entitled had his name been included in the list, and for the

costs.

THE fiat in this case was issued on the 4th of April, 1842, and creditors' and an official assignee were duly appointed, Mr. Belcher being the latter. The petitioner, James Hall, was a creditor, and proved for 353l. 14s. 2d., and his affidavit of debts was filed with the Crowder and Ball showed cause. The letter proceedings. The official assignee delivered of application and the letter of allotment were to the commissioner a list of the bankrupt's evidence of a contract between the company and estate, the amount of debts and dividend, but the plaintiff, and therefore required an agree- omitting the name of the petitioner. The comment stamp, under the 55 Geo. 3, c. 184, sche-missioner, acting on this, declared a dividend dule title "agreement." There was a proposition of 1s. 04d. in the pound. The solicitors to the on the part of the plaintiff to take an allotment fiat, upon this, made out the usual list for the of 30 shares, or any less number, and an agree- official assignee to make out dividend warrants, ment by the company to allot ten. The language and, on the solicitor of the petitioner applying of the 55 Geo. 3, c. 184, is similar to that of for his warrant, he was told that his name did the old Stamp Act, 23 Geo. 3, c. 58, with re

spect to which Lord Kenyon, in the case of

a See Clarke v. Chaplin, ante, p. 567.

600

Superior Courts: Court of Review.-Analytical Digest.

not appear in the list and both the solicitors and the dividend payable to him, and shall keep to the fiat and the official assignee declining the list specifying the securities in his custody, all responsibility, the petition was presented, and shall take or send the books containing praying a declaration that Mr. Belcher had such warrants, together with the list, (not specirendered himself liable for 187. 10d., the amount|fying the securities,) to the accountant in bankof dividend on 3531. 14s. 2d. at Is. old. in the ruptcy, who shall ascertain that the amount of pound, and also the costs of the application, such warrants does not exceed the sum standand the costs, charges, and expenses incurred ing in his name to the credit of the bankrupt's by the petitioner in endeavouring to obtain estate, &c., and shall return the warrants to the payment of the dividend. official assignee for delivery to the creditors."

The affidavit of the clerk to the official assignee stated that, according to the practice in bankruptcy, the solicitor to the estate ought to make out correct lists of the creditors, for which he is paid, and the official assignee has no means of knowing whether the list is correct, without referring to the original proceedings or his private memoranda. He also swore that the name of the petitioner had been purposely omitted, under the mistaken idea that the word "exhd" inserted in the margin to denote that his proof had been exhibited meant that it had been expunged.

I take it this could not be done without the lists being perfected in the presence of the official assignee. My impression is, that it is the duty of the official assignee not to sign the list without ascertaining that it is correct. That is my impression. I am very much confirmed in the view I take of the matter by Mr. Fonblanque, who concurs with me, who is so well acquainted with the practice and the whole course which this matter has taken. Therefore, the official assignee, not asking that the solicitor may be brought here either to take the whole burden, or to share it with him, I Mr. Bacon and Mr. Willes, on behalf of the am afraid that I must charge the respondent. official assignee, called the attention of the The petitioner can have only as much as he court to the 1 & 2 W. 4, s. 22, appointing would have had, had his debt been included. official assignees; and to the rules of Novem- The petitioner must have the dividend he ber, 1842, which described in detail their would have had if this dividend had been calduties. From these it was to be inferred that culated, and the respondent will recoup himthe official assignees were merely the official self out of the estate which has come in or accountants in bankruptcy, and, as such, could may come in. The petitioner's equity is only not be justly held responsible for an omission to have such amount as he would have had, if such as that which had occurred in the present the debt had been included in the calculation.

case.

Mr. Russell and Mr. Tillotson, on behalf of the petitioner, insisted that the official assignee was appointed exclusively for the purpose of protecting the funds, and distributing them properly, and that, as it was by his negligence the omission had occurred, he was the party really liable.

The Chief Judge asked the counsel for the official assignee, whether it was desired that the solicitor to the fiat should be served with this petition, so as to enable the court to decide whether such solicitor, if a party to the error, should share the responsibility?

The respondent's counsel, after taking time to consider the suggestion of the court, said their client was willing to leave that to the court, but they did not desire it.

The Chief Judge. The official assignee declines to ask that the matter should stand over for the service of the petition upon the solicitor to the fiat. The 24th clause of the Order of 12th November, 1842, points out the mode of making a dividend, and directs as follows:-That where a dividend has been, or may be, declared, the solicitor shall prepare lists and so on, and then "the official assignee shall examine and sign the several lists, if correct, and shall prepare books at the expense of the estate, containing as many blank warrants as may be necessary, according to the form given in the schedule, and shall number and fill up a warrant for each dividend, and insert in each warrant the name of the creditor, to which the number of such warrant is prefixed in the list,

The next thing will be to make good to the assignee what he pays. There is not the slightest ground for the imputation of negligence. I make the order without the slightest imputation upon him. He is, I understand, an excellent officer. This is an unlucky slip, of which he may not have been the original author. There is no offensive imputation upon him. I am afraid the official assignee must pay the costs. I make this order with the greatest respect. Mr. Fonblanque is the highest possible testimony upon that subject, and he considers him to be an excellent officer. I do not know what order the court would have made if the solicitor had been brought here. I hope that in future official asssignees will consider it their duty to ascertain that the lists agree. I have no doubt that there is not another official assignee, whether in town or country, who, under the same circumstances, would not have fallen into the same error. İ trust, however, that now it will be well known that the court has put that construction upon the order, that the assignee must ascertain for himself that every creditor is included.

ANALYTICAL DIGEST OF CASES,

REPORTED IN ALL THE COURTS.

Common Law Courts.
PRACTICE.

AFFIDAVIT.

Title. A defendant described in the writ of summons as "W. W. Kilpin," entered an ap

Analytical Digest of Cases: Common Law Courts.

601

4. Return of nulla bona, &c., to a distringas.

pearance "William Wells Kilpin, sued as ridden by the stat. 2 W. 4, c. 39, s. 11. Harris W. W. Kilpin." An affidavit in support of a v. Robinson, 2 C. B. 908. rule for judgment as in case of a nonsuit, entitled "Edward Lomax, plaintiff, v. William-Sufficiency of affidavit.The affidavit in Wells Kilpin, defendant:" Held, sufficient. support of a motion for leave to enter an ap Lomax v. Kilpin, 4 D. & L. 295, S. C. 16 M. & pearance after the return of nulla bona and non W. 94. est inventus to a writ of distringas, should show distinctly that everything had been done to find some goods of the defendant. Pinney v. Richardson, 34 L. O. 182.

And see Appearance, 4; Distringas, 1; Ejectment, 5; Executors.

AMENDMENT.

ARREST.

1. Copy of writ.-A writ of capias and copy served were directed to the "sheriffs" of 1. Judge's order.-Appeal to court.-A party Middlesex, instead of "sheriff." The defend-arrested by order of a judge may apply for his ant in consequence applied to a judge at discharge either to the court or to another chambers to be discharged out of custody, judge, and may, on such application, use affiwhich the judge refused, and ordered the writ davits to contradict or explain those on which and copy to be amended. On motion to the order was granted, and he may appeal to rescind the judge's order: Held, that though the court against the decision of such latter the capias might be amended, the copy could judge. not, and that the defendant was entitled to be discharged, inasmuch as he was not served with a true copy of the writ as amended. Moore v. M'Ghan, 4 D. & L. 267.

2. Writ of summons.-The court will amend alias and pluries writs of summons, by indorsing thereon the day of the date of the first writ of summons and of the return thereto, in order to save the Statute of Limitations, notwithstanding the 2 W. 4, c. 39, s. 10. Culverwell v. Nugee, 15 M. & W. 559.

3. Writ of summons.—Statute of Limitations. The court will amend a writ of summons by inserting therein the character in which the plaintiffs sue, or the defendants are sued, if it appear that the debt would otherwise be barred by the Statute of Limitations. Christie and another, assignees of Yeld, a bankrupt, v. Bell and another, public officers, 34 L. O. 136. And see Arrest, 2; Ejectment, 3.

APPEARANCE.

1. Sec. stat. by plaintiff in person.-Where a plaintiff sues in person, he may in person appear for the defendant, sec. stat., although that case is not provided for in the forms given in the schedule to the 2nd section of the Uniformity of Process Act, 2 W. 4, c. 39. Smith v. Wedderburne, 16 M. & W. 104; S. C. 4 D. & L. 296.

2. Sec. stat.-Where, upon service of a writ of summons on a defendant, he denies that he is the party named therein, and the person serving the writ consequently omits to make the indorsement on the writ within the time required by Reg. Gen. M. T., 3 W. 4, r. 3, the court will, upon affidavit of these facts, permit him to make the indorsement, notwithstanding the lapse of the specified time, so as to enable the plaintiff to enter an appearance for the defendant according to the statute. Burrows v. Gabriel, 4 D. & L. 107.

3. At what time to be entered.-Where the

8th day after service of a writ of summons falls on any day between the Thursday next before, and the Wednesday next after, Easter-day, the last day for entering an appearance thereto is the Wednesday next after Easter-day, the rule of court of Easter Term, 2 W. 4, being over

If the judge secondly applied to should differ from the first, or if it should appear on fresh affidavits that the person arrested was about to quit England at the time those affidavits were made, though he was not so when the order was made: Quære, whether in such cases the judge or court ought to discharge him.

An affidavit that deponent "has been informed and believes" that a party is about to quit England, is insufficient to warrant an order for arrest. Where an order to hold to bail has been improperly made by a judge, the court will not set aside the capias, but only discharge the defendant out of custody.

Where a defendant, against whom a capias has issued under a judge's order, applied to the court to have the money returned, on the ground that he was not about to quit the country, and the affidavits in answer were contradictory, the court referred the matter to the Master for inquiry. Graham v. Sandrinelli; Talbot v. Bulkeley, 4 D. & L. 317.

2. Variance of writ and copy.—Amendment. Where, in a writ of capias, and in the copy thereof served on the defendant, it was directed to the sheriffs, instead of the sheriff of Middlesex: Held, that this was an irregularity; that though the court or a judge might amend the writ, they had no power over the copy; and that the defendant was entitled to his discharge, though the writ was amended, on the ground of the variance from it of the copy. Moore v. Magan, 10 M. & W. 95,

3. Plaintiff's death.—Ca. sa.—A defendant
arrested on a ca. sa., is not entitled to be dis-
charged out of custody by reason of the plain-
tiff's death, after the delivery of the writ to the
sheriff, and before arrest.
D. & L. 279.
Ellis v. Griffith, 4

Case cited in the judgment: Cleve v. Vere, Cro.
Car. 457.

4. Privilege. Queen's servant.-The "So-
merset Herald" is a servant in ordinary of the
Queen, with fee, and therefore privileged from
arrest. Dyer v. Disney, 34 L. O. 231.
See Execution, 4; Misdirection.

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602

Analytical Digest of Cases: Common Law Courts.

Where a defendant was brought up in custody defendant, and that defendant afterwards told

of a gaoler, for the purpose of being charged in execution, and it appeared that the commissioner of bankrupts had, on the preceding day, granted an interim order for his protection, the court refused to allow him to be charged with execution. Sloman v. Williams, 4 D. & L. 49.

COGNOVIT.

Attestation.-A cognovit was attested thus: -“Duly executed by the above-named R. G., in the presence of me, the undersigned S. B., attorney on behalf of the said R. G., expressly named by him, and attending at his request; and I do hereby declare that I subscribe my name as witness to the due execution hereof by the said R. G., and as his attorney; and that previous to the execution hereof by the said R. G. I informed him of the nature and effect hereof. S. B., Attorney, Birmingham." Held, sufficient. Phillips v. Gibbs, 4 D. & L. 275.

COURT BARON.

plaintiff, "he should upset plaintiff's distringas, for the writ" (not further describing it) "had been left with defendant's brother, and not with him." Crofts v. Brown, 7 Q. B. 284.

2. Continuation of process.-A writ of distringas may issue within a reasonable time after the expiration of a previous writ of summons. Peyton v. Wood, 4 D. & L. 19; S. C. 15 M. & W. 608.

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On a motion for judgment against the casual ejector, where other than should state in terms that the deponent "serted personal service is relied on, the affidavit the said A. B., the tenant in possession, by," &c., and then detail the facts which it is sought to substitute for personal service. Pigott v. Roe, 4 D. & L. 88.

Doe d.

2. Service.-Secretary of railway company.— Personal service of a declaration in ejectment on the secretary of a railway company who are Constitution of Irregularity.—Waiver.-in possession of land sought to be recovered, An omission to state in the plaint, in a Court Baron, the nature of the action, is a mere irregularity, which may be waived.

is, under the 8 & 9 Vict. c. 16, s. 135, sufficient for a rule absolute for judgment against the casual ejector. Doe d. Burgess v. Roe, 4 D. & L. 311.

In a suit in a Court Baron, the proceedings were alleged to have been taken at a court held 3. Consent rules.-Adverse titles.-Amend"before A., the steward of the said court, a freement.-Where two persons delivered separate suitor thereof, and B. and C. and others, free consent rules in ejectment, each claiming to suitors of the said court:" Held, that the court defend as landlord, the one for the whole of the was properly constituted, it being alleged that premises claimed in the action, the other for a A. was a free suitor. part of them, specifically named in the rule, under adverse titles, the court ordered the consent rules to be amended by confining them respectively to such parts of the premises as were really in the occupation of each party or his tenants. Doe d. Lloyd v. Roe, 15 M. & W. 431.

Held, also, that A. was properly described as steward of the court, though it was not alleged that he was steward of the manor.

Held, also, that the court was properly described; and that it was sufficient to set forth the names of two only of the free suitors who attended. Brown v. Gill, 2 C. B. 861. Cases cited in the judgment: Jones v. Jones, 5 M. & W. 523; Chetwode v. Crew, Willes, 614 Bishop v. Kaye, 3 B. & Ad. 605; Rex v. Mein, 4 T. R. 480.

DEMURRER, STRIKING OUT.

On a rule for striking out a demurrer, under Reg. Gen. Hil. 4 W. 4, r. 2, the court set it aside, and struck out the pleadings connected with it, the defendant to pay plaintiff's costs of preparing for trial and attending to try the cause, and of the application to set aside the demurrer, and take short notice of trial, or judgment to be for plaintiff on the whole record. Tucker v. Barnesley, 16 M. & W. 54.

DISTRINGAS.

1. What affidavit must state. An affidavit for the purpose of obtaining a distringas to compel appearance must state an endeavour to

4. Particulars. In an action of ejectment for alleged breaches of covenants contained in a lease, the defendant is entitled to particulars of the breaches of covenant on which the plaintiff relies. Doe d. Moystyn v. Eyton, 33 L. O. 527.

ment against the casual ejector where proceed5. Affidavit.-On an application for judg ings have been taken under 4 Geo. 4, c. 28, it does not render the affidavit irregular to state that a year's rent is due, if the affidavit also allege that there is no sufficient distress on the premises to satisfy half a year's rent. Doe dem. Farmery v. Roe, 34 L. Ó. 81.

ERROR.

Assignment in criminal case.-The court, on davit, permitted the plaintiff in error in a motion and reasonable grounds shown by afficriminal case to assign errors without attending in person. Murray v. The Queen, 7 Q. B. 700.

EVIDENCE.

serve the writ of summons at the defendant's residence, and must specify where the residence was. A distringas obtained on affidavits not Pleading. In an action of trespass against describing the residence was set aside on three defendants, where a verdict is found for motion. the plaintiff against two of the defendants, the The want of such description is not supplied court will not grant a rule for a new trial on by a statement that the copy of writ of sum-the affidavit of the other defendant, stating that mons was left with the defendant's brother for he is willing to give up the advantage of a

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