1850. t'. JULIUS trari facias to be issued, founded on a judgment entered up under colour and pretence of a certain warrant of attorney executed by the now plaintiff in WETHERELL favour of the said Frederick Nesbitt, whereby the Bishop of Peterborough was commanded to levy &c., and the now plaintiff employed and retained the defendants to counsel and advise him in and about the setting aside the said warrant of attorney, judgment, and writ of sequestrari facias, and to use due endeavours to set aside the same; that they did not use any endeavours to do so, and conducted themselves so carelessly in the matter, that, by reason thereof, the writ of sequestrari facias remained in force much longer than it otherwise would, to wit, for two years, and the bishop, during that time, executed the writ, and sequestered all and singular the rents, tithes, oblations, obventions, fruits, issues, and profits, and all other ecclesiastical rights and emoluments of and belonging to the said rectory, which he otherwise would not have done, and by reason whereof the plaintiff became and was, and continued to be, deprived of all and singular the rents, tithes, &c. The defendants pleaded, to the first count, that, after the passing of the 1 & 2 Vict. c. 110., and before the committing of the grievances in that count mentioned, the now plaintiff was committed to the Queen's Prison as a prisoner, under a ca. sa., and was under that commitment kept and detained in the said prison thenceforth until and at the time of the commencement of this action; that, afterwards, and before &c., he was brought by habeas corpus before the court of Queen's Bench, and by that court charged in execution at the suit of one William Thermott, for a debt of 481., and 117. costs, and under that execution kept and detained in the said prison until and at the commencement of this suit; and the plea then went on to aver, that the now plaintiff did not, within twenty-one days after he had been so charged in execution, make satisfaction; and that Thurmott, after the committing of the grievances in the first count of the declaration mentioned, petitioned the insolvent debtors court, and obtained a vesting order, and that, by virtue of the said order, and of the said act of parliament, the causes of action in the first count of the declaration mentioned, became, and thenceforth continually had been, and still was, vested in Samuel Sturges, as provisional assignee of the insol vent debtors court. There was a similar plea to the second count, a general demurrer to each plea, and joinder. The question raised, on arguing the demurrer, was, whether the causes of action in the first and second counts respectively mentioned, passed to the assignee of the insolvent debtors court. This subject has recently been fully discussed and considered in two cases, Rogers v. Spence and Beckham v. Drake both of which were carried by writ of error to the House of Lords: the former is reported in 12 Clark & Finnelly, 700, and the latter in 2 House of Lords Cases, 579: and we think it unnecessary to enter at present into any further discussion of the principles on which the question is to be decided; and that the only thing required, is, to apply the rule given in those cases to the present. In the former, it was held, that a cause of action arising out of a wrong personal to the insolvent, and for which he would be entitled to a remedy, whether his property were diminished or impaired or not, does not pass to the assignee. Now, in the first count of this declaration, it is said, that, in consequence of the negligence of the defendants, a judgment was obtained against the plaintiff, and that, under it, he was brought into the court of Exchequer by virtue of a writ of wrong, habeas corpus ad satisfaciendum, and was remanded to On the other hand, in Beckham v. Drake, it was held, that, where pecuniary loss or damage is the substantial and primary cause of action, it does pass to the assignee, although such pecuniary loss may produce inconvenience to the party. Now, the second count of this declaration does not aver that the now plaintiff sustained, by reason of the negligence therein imputed to the defendants, any other damage than the loss of the tithes, &c., which were sequestrated; and that cause of action, according to the last-mentioned case, did pass to the assignee; and the plea to this count is therefore good, and judgment upon it must be for the defendants. Judgment for the plaintiff, on the demurrer to the plea to the first count. Judgment for the defendant, on the demurrer 1850. WETHERELL v. JULIUS. 1850. June 24. The declara- THIS tion stated, that, on the 7th of July, 1848, it was agreed between BATTY V. MELILLO. THIS was an action of assumpsit. The writ was issued on the 23rd of August, 1848. The declaration stated, that, heretofore, to wit, on the 17th of July, 1848, by a certain agreement then the plaintiff and the defendant, that the defendant and his wife should, from that day, for the term of three months, appear and perform as equestrians, on the stage and in the ring, in all performances and entertainments which might be produced at Astley's Amphitheatre, or elsewhere, under the direction of the plaintiff, in such parts and in such manner as the plaintiff should require, and should attend all rehearsals, and calls when so required, for a certain weekly salary. It then, after averring mutual promises, alleged for breach, that, although the plaintiff had an establishment at Peebles, in Scotland, under, his direction, for equestrian performances and entertainments, and although, under and in pursuance of the agreement, and during the subsistence of it, and before the expiration of the term of three months, to wit, on &c., the plaintiff gave notice to the defendant that he the plaintiff required the defendant and his wife to join the plaintiff's said establishment at Peebles, for the purpose of appearing and assisting in the performances and entertainments to be produced at the said establishment at Peebles, and although a reasonable time had elapsed, after the giving of the notice, and before the commencement of the suit, for the defendant and his wife to join the said establishment at Peebles, for the purpose aforesaid, yet that the defendant and his wife would not, when so required as aforesaid, or at any time afterwards, join the said establishment of the plaintiff at Peebles, or appear or assist in the performances and entertainments to be produced there, but refused and neglected so to do, &c. Held, on demurrer, that the promise to appear in any place, under the direction of the plaintiff, in the performances described, in such parts and manner as the plaintiff should require, and to attend all calls and rehearsals, involved an engagement so to join an establishment of the plaintiff for equestrian performances, as to be ready to accomplish the objects of the requisition; and that a failure to comply with such a requisition, and a refusal to assist in such performances, were sufficiently alleged to shew a breach of the defendant's contract: Held also, that it sufficiently appeared that the performances at which the defendant and his wife were required to assist, were performances of the description contracted for; that the absence of an averment that a reasonable time had elapsed after the notice, and before the expiration of the three months, was obviated by the statement in the declaration that the writ issued on the 23rd of August, 1848, and by the averment that such time had elapsed before the commencement of the suit; and that the breach, substantially shewing an entire refusal of the defendant to perform his contract, disclosed a good cause of action. made between the plaintiff of the one part, and the 1850. BATTY V. MELILLO. |