1835.

PLIMLEY

v.

WESTLEY.

a new bill, and so long as a bill is in agitation, and such indorsements are made, all the indorsers and every of them are liable as a new drawer." That was good law before the passing the stamp acts; but, inasmuch as this note on the face of it had all the force and effect of a valid promissory note, the stamp being once exhausted, the new contract evidenced by the indorsement was inoperative for want of a second stamp. I therefore think the plaintiffs were remitted to their right of action upon the original consideration.

The rest of the court concurring

Judgment for the plaintiffs.

Saturday, Nov. 14th.

There cannot

propriation to a

plea either of tender or of

payment, of mo

ney paid into

court in lieu of

bail.

BALLS v. STAFFORD.

BAYLEY moved for leave to plead (amongst others)

be a partial ap- a plea of payment into court of the sum of 817. 14s., the plaintiff to be at liberty to appropriate to that plea the sum of 817. 14s. out of a sum of 2201. already paid into court in this action. The affidavit upon which the motion was founded stated that the defendant was arrested under and by virtue of a writ of capias issued out of this court on the 28th August last, indorsed for bail for the sum of 2007.; and that the said sum of 2001., together with 201. for costs, was on or about the 23rd September last paid into court instead of putting in and perfecting bail, pursuant to the statute 7 & 8 Geo. 4, c. 71, s. 2; and that the said sum of 2201. remained in court in the cause.

THE COURT, referring to Stultz v. Heneage, 4 Moore & Scott, 472, where it was held that the court cannot allow part of a sum paid into court in lieu of special bail to be appropriated to the purposes of a plea of tender-the

third section of the 7 & 8 Geo. 4, c. 71, expressly pointing out the only mode in which money so deposited can during the progress of the cause be released, viz. by putting in and perfecting special bail-for the reasons there given, refused the rule.

1835.

BALLS

v.

STAFFORD.

Rule refused.

ENGLER, Administrator of STULZ, v. TWYSDEN, Bart.

Saturday, Nov. 14th.

an administrator on a bond given

by the defen

dent to the in

than twenty

for many years,

that the defen

der the insol

act.

The de

obtained a ver

THIS was an action brought by the plaintiff as admin- In an action by istrator of one George Stulz, deceased, upon a bond in the penal sum of 6067. 7s. (conditioned for the payment of 3037. 3s. 6d.), given by the defendant to the intestate, and testate more also to recover 77. 10s. for goods sold and delivered by years ago, and on which no inthe intestate, in his life time. The defendant pleaded-on terest appeared first, that the cause of action did not accrue within twenty to have been paid years-secondly, his discharge under the insolvent debtors the defence was act. It appeared at the trial that the defendant had ob- dant had been tained his discharge under the act in the year 1818. This discharged unfact was proved, and the certificate of his discharge from vent debtors the Fleet prison produced, by the attorney by whom the fendant having proceedings had been conducted on his behalf upon that occasion. On the part of the plaintiff it was proved, that, finding amongst the papers of the deceased, a notice that the defendant intended to apply for the benefit of the solvent debtors act, he had caused search to be made in the office, but could find no trace of his discharge-nothing more than that he appeared to have presented a petition and schedule, which by an indorsement on the back of it purported to have been dismissed, with leave to make a appearing that, had the plaintiff second application. The defendant produced the minute made due book of Mr. Clarkson, who at the period of his alleged dis- quiry, he would charge was the chief clerk of the insolvent court, which book have discovered from the register book and the minute book of

in

dict, the court

declined to relieve the plaintiff from costs

under the statute 3 & 4 Will.

4, c. 42, s. 31, notwithstanding the defendant's

schedule was

not to be found in the office of

the court-it

search and in

the clerk of the court for the time being, that the defendant had obtained his discharge.

1835.

ENGLER

v.

TWYSDEN.

contained an entry of his discharge on the 19th of November, 1818. A verdict was accordingly found for him.

Sir W. Follett, in Trinity Term last, on the part of the plaintiff, obtained a rule calling upon the defendant to shew cause why the verdict should not be entered up without costs, under the 3 & 4 Will. 4, c. 42, s. 31. The rule was drawn up on reading the record of Nisi Prius only. Lysons v. Barrow, 4 M. & Scott, 463, 10 Bing. 563, was cited and relied on.

Talfourd, Serjeant, shewed cause, upon the affidavits of the defendant and of his attorney, stating the fact of the former having been discharged under the insolvent debtors act on the 19th November, 1818, and that the intestate's name was inserted in the schedule, and notice duly given to him; and that the fact was communicated to the plaintiff as soon as the defendant was arrested: and also an affidavit made by one Waters, a clerk in the office of the court for the relief of insolvent debtors, which stated that there are two public books kept in the office, the one an index book containing the names of insolvents, opposite to whose names is a number referring to the page of the other public book, called a register book; that, in the index book, the defendant's name appeared three times with the several numbers 2144, 2168, and 2223, consecutively placed opposite to his name; that such entry shews that three petitions and schedules were filed by the defendant, the numbers referring to the pages of the register book; that the register book contains also an entry of the names of insolvents, the numbers of their schedules, the prison where they are in custody, when order made, the day of the hearing upon their petitions, whether notices served upon creditors or whether insolvents advertized, whether discharged or remanded, and what was done upon the hearing; that this book has eight

columns, in the form following, and which, as far as related to the defendant, were filled up as under:

1835.

That the several words "petition dismissed," "order for hearing discharged," and "lost schedule," and the letter " D.," are marked in pencil; that the letter D. so marked in pencil shews that the defendant was discharged; that the letters D. opposite to the names of other persons so discharged are all marked in pencil; that the defendant had been informed and verily believed it to be true that it was the usual custom at the time of the defendant's discharge so to mark the letter D. in pencil, for the sake of expedition: that each schedule has an indorsement thereon shewing what was done upon the hearing of each insolvent's petition; and, in ordinary cases, the custom of the office is, when the party making search has found the name of the insolvent in the index book, for the clerk to refer to the register book which gives the numbers of the schedules, and to hand to the party the schedule itself for inspection, but that, when inquiry is made after one of

1835.

ENGLER

v.

TWYSDEN.

the lost schedules, and the party is desirous of ascertaining what was done thereon, not only the register book, but also a certain minute book of Mr. Clarkson, who was in the year 1818 the chief clerk of the court, is referred to, if necessary, for the purpose of affording correct information upon the subject; that the clerks in the office are at all times ready and willing to give every assistance and explanation about the discharge of insolvents, in order that the party applying for such information may arrive at the particulars in any way relating to such discharge; and that it was very evident from the entries in the books that the defendant (although his schedule had been lost) was discharged under the act upon the said schedule in the year 1818; and that such information would have been given to any party requiring it as would have satisfied him of the fact.

The learned Serjeant submitted, that the only effect of the statute 3 & 4 Will. 4, c. 42, s. 31, was, to place executors and administrators plaintiffs upon the same footing with respect to costs as any other plaintiffs, reserving to the court a right, in the exercise of their discretion upon the particular circumstances of the case, to relieve them from costs where they appeared to have acted bonâ fide, and to have been induced to proceed by some misrepresentation or undue concealment on the part of the defendant. In Wilkinson v. Edwards, Ante, Vol. 1, 173, 1 New Cases, 301, it was held, that, where an executor has commenced an action without using due diligence to ascertain that he can proceed with a reasonable prospect of success, or is guilty of any laches so as to cause unnecessary expense or vexation to the defendant, the court will not interpose to excuse him from costs. In Southgate v. Crowley, Ante, Vol. 1, 374, 1 New Cases, 518, the court go a little further, and hold that the discretion given to the court or a judge by this statute is not to be governed by the fact of the action having been properly brought; but it must