Page images
PDF
EPUB

1851.

Er 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 5861. 128. due from the said prisoner to Richard Edols, a certain other debt of 1001. 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

[blocks in formation]

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.,

[blocks in formation]

" 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.

[ocr errors][ocr errors]

BESANT v. Cross.

May 9. ASSUMPSIT on a bill of exchange for 981. 198. 6d., It is not comdrawn by one Thomas upon, and accepted by, the petent to the

acceptor of a defendant, and payable to the drawer's order four months bill of exafter date.

change to set

up a parol conThe defendant, who was under terms to plead issu- tract incon

sistent with ably, pleaded, to the further maintenance of the action, the contract as follows:—That, before the time of the making and upon the face

of the bill. accepting of the said bill, he, the defendant, was indebted In assumpsit to Thomas in the sum of 65l. ; that, thereupon, and

by indorsee

against acbefore the making and accepting of the bill, it was agreed ceptor of a bill

of exchange, by the defendant and Thomas, that the defendant should the defendant, pay to Thomas the said sum of 651., by four instalments --being under

terms,of 161. 5s. each, to wit, on &c. &c., and that, for the pleaded, to the purpose of securing the due payment of the said sum of further main

tenance of the 651. as aforesaid, Thomas should make his bill of ex- action, that he change, and that the defendant should accept the same ; to the drawer

was indebted that, in pursuance of the said agreement, Thomas made, in a sum less

than the and the defendant accepted, the bill of exchange in the amount of the declaration mentioned, for the purpose of securing to bill; that, Thomas the due payment of the said sum of money, and acceptance, it not otherwise, and, save as aforesaid, there never was any between him

was agreed value or consideration for the acceptance of the said bill and the of exchange, or for the payment by the defendant of the should pay him

drawer, that he amount; that Thomas afterwards indorsed the bill to the such lesser

sum by four plaintiff without value or consideration, in order that the instalments ; plaintiff might hold it as the agent of Thomas, and that that he duly

paid three of the plaintiff had always held, and still holds, the same such instal

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.

1851.

BESANT

0. Cross.

without value or consideration, and as Thomas's agent; that, before the commencement of the suit, the defendant paid to Thomas, and Thomas accepted and received of and from the defendant, the first three instalments, amounting to the sum of 481. 15s., in full satisfaction and discharge of the said three instalments, and that, after the commencement of the suit, to wit, on &c., being the day agreed upon for the payment of the last instalment, he, the defendant, paid to Thomas, and Thomas then accepted and received of and from the defendant, the said last instalment, in pursuance of the said agreement so due to Thomas ; and that it thereupon became and was the duty of Thomas to obtain the bill from the plaintiff, and to return the same to the defendant, and not to allow the suit to proceed; yet that Thomas did not obtain the bill from the plaintiff, but wrongfully suffered the suit to proceed, and that the plaintiff still continued the agent of Thomas,—verification.

The plaintiff, treating the above as a non-issuable plea, signed judgment as for want of a plea, on the 23rd of April, and gave the defendant's attorney notice thereof on the 24th, and on the 29th obtained a rule to compute.

Bramwell, on the same day, obtained a rule calling upon the plaintiff to shew cause why the judgment, and all subsequent proceedings thereon, should not be set aside, for irregularity.

Lush now shewed cause. The plea is clearly a bad one: it would be bad on general demurrer, or after verdict; for, it sets up a contract by which it is sought by parol to vary the terms of a bill of exchange : Adams v. Wordley.(a) [Williams, J. It was put, on moving, rather as a plea of failure of consideration.] As to 651.,

(a) 1 M. & W. 374.

« PreviousContinue »