1851. Ex parte E. W. VIOLETT, a Prisoner. April 26. By an order of adjudication by a commissioner of the insolvent THE prisoner, on the 26th of October, 1850, filed his petition in the insolvent debtors court for relief under the 1 & 2 Vict. c. 110.; and on the 3rd of March, 1851, Mr. Commissioner Law made the following order of debtors court, adjudication, under the 76th and 78th sections of that act: 66 purporting to be made pursuant to the 1 & 2 Vict. c. 110. ss. 76. 78., the pri soner was adjudged to be discharged as to all the debts in his schedule, at the expira tion of sir four debts, which the com Upon hearing the matters of the schedule of the said prisoner, and upon examination made into the same, and upon the said prisoner's swearing to the truth of the same, and executing a warrant of attorney in pursuance of the said acts, it is adjudged and ordered that the said prisoner shall be discharged from custody, and entitled to the benefit of the said act as to the several debts and months from sums of money due, or claimed to be due, on the 28th the date of the vesting order, of October, 1850, being the time of making the order except as to vesting the estate and effects of the said prisoner, pursuant to the statute in that behalf, from the said prisoner to the several persons named in the said schedule as creditors, or claiming to be creditors, for the same respectively, or for which such persons gave credit to the said prisoner before the said time of making such vesting order, and which were not then payable, and as to the claims of all other persons, not now known to the said prisoner, who may be indorsees or holders of any negotiable security set forth in the said schedule so sworn to as aforesaid, so soon as the said prisoner shall have been in custody at the suit of one or more of the persons above missioner found to have been contracted by means of a breach of trust, and as to which the prisoner was ordered to be discharged at the expira tion of sixteen months from the date of the vesting order: Held, that, whether the commissioner had or had not jurisdiction to make the latter part of the order, the first part was no discharge as to the four excepted debts. 1851. Ex parte VIOLETT. mentioned, for the period of six months, to be computed from the said time of making such vesting order as aforesaid; excepting as to a certain debt of 3501., part of the debt of 586l. 12s. due from the said prisoner to Richard Edols, a certain other debt of 100l. due from the said prisoner to George Slade, a certain other debt of 3001. due from the said prisoner to John Wilkins, and a certain other debt of 4801. due from the said prisoner to Samuel Parsley; and, forasmuch as it appears to the said court that the said prisoner hath contracted the said four lastmentioned debts severally by means of a breach of trust, it is adjudged and ordered that the said prisoner shall be discharged from custody, and entitled to the benefit of the said act, as to the said several last-mentioned debts, so soon as the said prisoner shall have been in custody at the several suits of the said Richard Edols, George Slade, John Wilkins, and Samuel Parsley, creditors for the same debts respectively, for the period of sixteen calendar months, to be computed from the said time of making such vesting order as aforesaid." Upon an affidavit setting out the above order, and stating, that the term of six months therein mentioned expired on the 14th instant; that the vesting order bore date the 28th of October, 1850; that, since the said adjudication, and on the 7th of March last, the prisoner was served with a writ of detainer at the suit of Richard Edols; and that he remained in custody of the keeper of the Queen's prison, under and by virtue of such writ of detainer, since the said 14th instant, Lush now moved for a writ of habeas corpus to bring up the prisoner to be discharged. The order of adjudication is bad so far as relates to the sixteen months' imprisonment. The 75th section of the 1 & 2 Vict. c. 110. impowers the court to adjudge that the prisoner shall be discharged from custody, at such time as the said court shall direct, as to the several debts and sums of money due or claimed to be due at the time of making such vesting order from such prisoner to the several persons named in his schedule as creditors, or claiming to be creditors, for the same respectively, or for which such persons shall have given credit to such prisoner before the time of making such vesting order, and which were not then payable, and as to the claims of all other persons, not known to such prisoner at the time of such adjudication, who may be indorsees or holders of any negotiable security set forth in such schedule. The 76th section enacts, "that, in all cases where no cause shall appear to the contrary, it shall be lawful for the said court, &c., according as shall seem fit, to adjudge that such prisoner shall be so discharged, and so entitled as aforesaid, forthwith, or so soon as such prisoner shall have been in custody at the suit of one or more of the persons as to whose debts and claims such discharge is so adjudicated, for such period or periods, not exceeding six months in the whole, as the said court, &c., shall direct, to be computed from the making of such vesting order as aforesaid." And the 78th section enacts, "that, in case it shall appear to the court that such petitioner shall have contracted any of his debts fraudulently, or by means of a breach of trust, &c., then, " it shall be lawful for such court, &c., to adjudge that such prisoner shall be so discharged, and so entitled as aforesaid, forthwith, except as to such debt or debts, sum or sums of money, &c., as above mentioned; and, as to such debt or debts, sum or sums of money, &c., to adjudge that such prisoner shall be so discharged, and so entitled as aforesaid, so soon as he shall have been in custody, at the suit of the person or persons who shall be creditor or creditors for the same respectively, for a period or periods not exceeding two years in the whole, as the said court, &c., shall direct, to be computed as aforesaid." "Provided always," s. 85., 1851. Ex parte VIOLETT. "that, in all cases where it shall have been adjudged that any such prisoner shall be so discharged, and so entitled as aforesaid, at some future period, such prisoner shall be subject and liable to be detained in prison, and to be arrested and charged in custody at the suit of any one or more of his or her creditors with respect to whom it shall have been so adjudged, at any time before such period shall have arrived, in the same manner as he would have been subject and liable thereto if this act had not passed." The commissioner having once adjudicated under the 76th section, his functions were exhausted; and consequently the subsequent adjudication as to the sixteen months' imprisonment, is clearly bad. [Cresswell, J. If this is a bad order, is it a discharge at all?] The legal effect of the order is, to discharge the prisoner, as to all his creditors, from the expiration of the six months. JERVIS, C. J. It seems to me to be unnecessary to decide whether the commissioner had authority to act upon the 76th and 78th sections together, by adjudicating, as to part, under the former section, and, as to the rest, under the latter, because it is quite clear here, that, as to the four excepted debts, the prisoner is not discharged at all, and consequently as to them the original detainers operated. CRESSWELL, J. I am of the same opinion. It is impossible to construe this order of adjudication as a discharge of the prisoner from all his debts." WILLIAMS, J. I also think it is impossible to construe this order as an order for the discharge of the prisoner, forthwith, as to all the debts inserted in his schedule. TALFOURD, J., concurred. Rule refused. 1851. BESANT v. CROSS. May 9. ASSUMPSIT SSUMPSIT on a bill of exchange for 981. 19s. 6d., It is not comdrawn by one Thomas upon, and accepted by, the petent to the defendant, and payable to the drawer's order four months bill of exafter date. acceptor of a change to set up a parol contract incon sistent with the contract of the bill. by indorsee against acceptor of a bill of exchange, the defendant, being under terms, pleaded, to the further main tenance of the action, that he was indebted The defendant, who was under terms to plead issuably, pleaded, to the further maintenance of the action, as follows:-That, before the time of the making and accepting of the said bill, he, the defendant, was indebted to Thomas in the sum of 65l.; that, thereupon, and before the making and accepting of the bill, it was agreed by the defendant and Thomas, that the defendant should pay to Thomas the said sum of 65l., by four instalments of 167. 5s. each, to wit, on &c. &c., and that, for the purpose of securing the due payment of the said sum of 651. as aforesaid, Thomas should make his bill of exchange, and that the defendant should accept the same; that, in pursuance of the said agreement, Thomas made, and the defendant accepted, the bill of exchange in the declaration mentioned, for the purpose of securing to Thomas the due payment of the said sum of money, and not otherwise, and, save as aforesaid, there never was any value or consideration for the acceptance of the said bill of exchange, or for the payment by the defendant of the amount; that Thomas afterwards indorsed the bill to the plaintiff without value or consideration, in order that the instalments; plaintiff might hold it as the agent of Thomas, and the plaintiff had always held, and still holds, the same such instal to the drawer in a sum less than the amount of the bill; that, acceptance, it between him was agreed and the drawer, that he should pay him such lesser sum by four before the that that he duly paid three of ments before, and the fourth after, the commencement of the action; and that the bill was indorsed to the plaintiff without value or consideration:-Held, not an issuable plea. |