after its receipt, it would not have reached his bankers there to be in time for the London post before Sunday, on which day they would not have been bound to forward it, and if they had kept it until Monday, it could not have reached London before Wednesday, and then if Smith and Co. had not presented it until the next day, which would have been in due course, the bill would not have been honoured: so that if all which the law requires had been strictly observed, the case would have been the same; and therefore even if there were laches, no damage can be said to have arisen therefrom. Lord ELLENBOROUGH, C. J. The party who agreed to take the bill so near the time of its becoming due, as to make it necessary to present it without delay, might have renounced it if he did not choose to undertake that duty, and have sent the bill back again; but if he keeps it, he is bound to use reasonable and due diligence in presenting it. Here he has not so done; he was bound to send the bill off sooner; he might have sent it on Friday, but by delaying until Sunday, he deprived the defendants who were parties to the bill of the chance of its being presented at least one day sooner. LE BLANC, J. The plaintiff is not at liberty to calculate that probably each of the parties, who receive the bill in its progress to being presented, will hold it in their hands to the utmost extent of time which the law allows them, in order to excuse his own delay when their dispatch has exceeded his calculation. BAYLEY, J. The plaintiff suffered Friday's and Saturday's post to pass without forwarding the bill, and I thought that as he had neither taken the necessary steps to 1812. ANDERTON against BECK. 1812. ANDERTON against ВЕСК. to get it paid, nor apprized the defendants that he meant to renounce it, therefore he had made the bill his own. The party must use due diligence, and is not at liberty to take the chances of being in time to the prejudice of other parties. Per Curiam, Rule refused. Thursday, Nov. 12th. Where separate commissions of YOUNG and Others against D. and A. HUNTER, THE HIS was a rule obtained on a former day for staying the proceedings, and discharging the defendagainst three of ant Glass out of custody in this action. bankruptcy were issued four partners, to which they conformed and passed their examination, and an order was made for allowing the joint creditors to prove their debts under the commission of one of the three, under which commis sion the plaintiffs proved their joint debt, In July sur 1811 the defendant Glass being in partnership with the other defendants under the firm of Hunter, Rainey, and Co., a separate commission of bankruptcy issued against him as partner with them under that firm, upon which he was declared a bankrupt, and rendered and passed his examination, and F. Robertson, one of the plaintiffs, was chosen and acted as assignee under that commission. Separate commissions of bankruptcy were also about the same time issued against the two defendants D. Hunter and R. Rainey, (but not and afterwards against A. Hunter, he being resident in Scotland,) as partners for the being respectively partners of the said firm; under same debt, and which they were also declared bankrupts, and surrendered and passed their examinations. Upon application to the Lord Chancellor, for an order to allow proof of the joint debts, and distribution of the joint effects of the said firm, under one of the separate commissions, his Lordship directed that such proof and distribution should be allowed to be made under the commission against sued all the arrested one of the other two under whose commission they had not proved: Held that he was not entitled to be discharged out of custody. Rainey. Rainey. In pursuance of this order, the plaintiffs proved their joint debt under the commission against Rainey for the purpose of receiving a dividend upon it, and afterwards brought this action for the same debt, and thereupon, in October last, arrested the defendant Glass for the sum of 30,0001. In support of the rule it was now contended, that by proving their debt under the commission against Rainey, the plaintiffs must be deemed to have made their election to take the benefit of such commission within the meaning of stat. 49 G. 3. c. 121. s. 14., and therefore could not afterwards proceed by action for the same debt, and that it would be hard upon the defendant Glass, who was stripped of all his property both joint and separate, to be considered as still liable. to this debt. But the Court were of opinion, that the language of the act of parliament would not bear the construction contended for; if it was so meant, non ita lex scripta est; that the words "proving a debt under a commission shall be deemed an election to take the benefit of such commission," must be taken to relate to cases where a party, who has proved under a commission, sues the same person under whose commission he has proved. And BAYLEY, J. added, that a part of the argument assumed that the Lord Chancellor's order extended to making the joint property of Glass, in the possession of his separate assignees, liable to the joint creditors who had proved under Rainey's commission, but no such order appeared to be made. Per Curiam, Campbell was in support of the rule. Rule discharged. 1812. YOUNG against GLASS. THURSTON, 1812. Friday, Nov. 13th. Where goods were taken in execution by the sheriff on a fi. fa., and whilst they remained in his hands unsold, an extent came at the king's suit tested after the entry of the sheriff under the fi. fa.; and the sheriff thereupon seized the said goods subject to the former seizure, and afterwards sold them under a venditioni exponas issued upon such ex tent, and paid over the pro ceeds of such sale by order of the Court of not maintain THURSTON, Widow, against MILLS, late Sheriff of Suffolk. IN N assumpsit for money had and received, and on an account stated, which was tried before Lord Ellenborough, C. J., at the Middlesex sittings, after Hilary term, 1809, the jury found a verdict for the plaintiff, for 20771. 3s. 2d., subject to the opinion of the Court upon a case stated, which was to be changed into a special verdict, if the Court, on the hearing of the argument, should think fit: and after one argument, the case, being considered to be of great moment, was ordered to be converted into a special verdict, which was accordingly so entered on the record, and stated in substance that on the 17th of June 1807, a writ of fieri facias issued out of the court of C. P., at the suit of the plaintiff, tested on that day, returnable on the morrow of All Souls, and directed to the sheriff of Suffolk, on a judgment before that time recovered in the said court by the plaintiff against S. Thurston the elder, which writ was on the 18th delivered to the under-sheriff of the defendant, then sheriff of the county, and commanded the sheriff to levy of the goods and chattels of S. Thurston the elder, 60007. debt, and 80s. damages and costs, and was indorsed to levy 30067. 9s., besides 20s., for execution, warrant, and attorney's trouble, sheriff's poundage, and officer's fees. Immediately upon the receipt of the writ, a warrant to a sheriff's officer for the execution of the same, was forwarded by the undersheriff, on the same day, to the plaintiff's attorney at Ipswich, by a special messenger whom the plaintiff's at torney torney had sent for that purpose. And the sheriff's officer named in the warrant, on the same day entered into the premises of S. Thurston, and seized and took possession of his goods under that execution. The plaintiff is sisterin-law to S. Thurston, and the judgment on which the fieri facias issued, was entered up on the 17th of June 1807, on a warrant of attorney, dated on the 11th of the same month. On the 22nd of the same month a fiat was granted by a baron of the Court of Exchequer, for an extent against S. Thurston for 20667. 15s. 8d. due to his majesty for malt duties; which debt had been previously found on an inquisition taken the same day, by virtue of a commission duly issued from the Court of Exchequer for that purpose, which was also issued and tested on the same day; and the writ of extent was tested and issued on the same 22nd of June, returnable on the 6th of November then next, and was delivered to the sheriff on the 23d of June, who thereupon issued a warrant to the same officer, for the execution of the writ of extent, and he, by virtue of that writ and warrant, took possession of the same goods under the extent on the same 23d of June; and no sale had been made of the goods under the fieri facias at the time of the officer's entry under the extent. Before the return of the extent an inquisition was duly taken thereon by the sheriff, which found the foregoing facts, and also that the goods were seized and taken into his majesty's hands, subject and liable, as far as the same were by law subject and liable, to the said writ of fieri facias; and which extent and inquisition were returned into the Court of Exchequer on the return of the extent. In December following the defendant, by the hands of his under-sheriff, received from the Court of Exchequer his majesty's writ of ven ditioni 1812. THURSTON against MILLS. |