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1812.

PARKER against SMITH.

virtually had with the assured themselves ; on which special ground, in respect of the commission del credere in that case, Grove v. Dubois, 1 Term Rep. 112., was determined. In their character of agents, the defendants' authority as to acts done, that is to say, payments in fact made, and transactions actually executed and consummated, cannot be questioned. The underwriter and his assignees are precluded by the adjustments which took place from contending that the brokers were not then well entitled to deduct and retain what on the behalf of the assured they in fact then deducted and retained in account with the underwriter for losses, short interest, and returns of premium : but still more deductions were made, and acts done, under a determinable authority, as to all subsequent concerns; and inasmuch as a bankruptcy on the part of the underwriter has in fact taken place, the question is whether that authority to settle on his behalf, to apply his premiums in hand to the satisfaction of demands justly claimable against him by the assured, and which up to that time subsisted, is not in point of law countermanded? And inasmuch as the bankrupt was not competent after his bankruptcy to pay or apply this fund himself in satisfaction of these claims of the assured, it follows as a consequence that he could not authorize his broker so to do; otherwise the derivative and implied authority would be stronger and more extensive than the original and principal authority of the party himself; which cannot be. The consequence is that the authority of the agent, the brokers, was virtually countermanded and extinct by that act of bankruptcy, by which the bankrupt's own original power over the subject-matter ceased and became transferred to others. In conformity, therefore, with what

was

1812.

PARKER against SMITH.

was decided by the Court of Common Pleas, in Minett and Another, Assignees of Barchard, v. Forrester, which proceeded expressly on this ground, that the authority given by the bankrupt ceased by his bankruptcy, we are of opinion that the plaintiffs are entitled to recover all the three sums demanded by this action; the same not being retained by virtue of any antecedent adjustment by the bankrupt, nor of any authority from him, express or implied, extending to payments or adjustments to be made subsequent to his bankruptcy. How far these sums could have been recovered from the brokers, if the bankruptcy had not happened, it is unnecessary for us to consider or to decide upon the present occasion.

Judgment for the Plaintiffs.

FARQUHARSON against FouchecOUR.

Thursday, Nov. 26th.

UPO

rule for better

PON a rule nisi for setting aside a writ of procedendo Plaintiff in an

for irregularity with costs, it appeared that the from which a cause was commenced in Trinity vacation in the Mayor's ed by habeas

cause is remov. Court, removed by habeas corpus, and a rule for better corpus, and a bail given on the 2d of November, which expired on the bail given, is 6th; on which day the defendant, being in custody of apprentitled to the sheriff of Middlesex in execution in another action, after render of his attorney issued a habeas corpus, directed to the and notice of

such render, sheriff, &c. and procured a return to it on the same day, although such intending to have rendered the defendant; but it being after the day on lodged with the officer in whose custody the defendant which the rule was at a quarter past nine at night, too late to render him, expires. the officer took him to Newgate in execution in the other action, and kept him there till the 9ih, on which day

the

for better bail

1812. the defendant was rendered in this cause and committed

to the custody of the marshal. On the Ilth notice of FARQUHAR

render was given to the plaintiff's attorney, notwithFouculecourstanding which the plaintiff, on the 12th, issued a proce

dendo, which was allowed on the 13th.

SON

Jervis, who shewed cause against the rule, after referring to Wiggins v. Stevens (a), contended that the procedendo was well issued, inasmuch as the render was too late ; there being no case in which the Court had extended the indulgence of rendering beyond the rising of the Court on that day when the bail are bound to render.

Marryatt, contrà, contended that it was sufficient that the render was completed on the 9th, before the procedendo issued; and compared it to the case of a render made without justifying, after the regular time of justification is passed, which had been held to entitle the bail to the sheriff to stay proceedings against them on the bail-bond (1). He admitted that if the procedendo had issued on the 7th the render would not have been good.

Lord ELLENBOROUGA, C. J. The procedendo was too late. After the 6th the plaintiff might have sued it out immediately, but he waits until the 12th, and in the interval the bail have surrendered the principal. Therefore the plaintiff is too late.

LE BLANC, J. inquired whether there was any case
where it had been held that a party might not render at.
any time before the procedendo issued.
Per Curiam,

Rule absolute.
· (a) 5 East, 533. (6) 5 T. R. 401. 534. 7 T. R. 529. 2 N. R. 85.

WINSTANLEY

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1812.

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WINSTANLEY against GAITSKELL and Newcome.

Thursday,
Nov. 261h.

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fendants, returnable the last day of last Trinity the bail to sur-
term, on which day, both the defendants being in custody render their

principal,
of the sheriffs of Nottingham under process of the borough- where, the
court, the bail, in order to render them in their dis- principal being

in custody un-
charge, sued out a habeas corpus, under which Guitskell der process of

another Court, was brought up; but Newcome, in consequence of an it appears on

the return made accident which had caused a dislocation of his ancle and to a habeas corcompound fracture of his leg, was incapable of being the bail in order removed without danger of his life; and the sheriffs to render him, made a special return of these circumstances, by reason be removed out of which they could not have his body at the time and without danger place commanded in the writ. Whereupon Gaitskell to his life, and

that such im.
only was rendered, and an exoneretur as to him was en- possibility still

continues.
tered on the bail-piece. On the first day of this term
a rule nisi was obtained, that the bail might have time to
render Newcome, until the fourth day of next term, he
being still incapable of being removed.

that he cannot

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Richardson, who shewed cause, relied on Wynn v. Petty (a), where the Court refused, in relief of the bail, to depart from the strict rule which bound the bail either to render the principal or pay the money, and did not admit of any excuse ; yet in that case, if the rule could have been dispensed with, there was the same reason, as in this, arising from the act of God, for dispensing with it. The circumstance of this defendant being in other

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Vol. XVI.

(a) 4 East, 102.

Dd

custody

NSTANLEY

1812.

WINSTANLEY

against GAITSKELL.

custody at the return of the writ, did not create any impossibility of rendering him, if his health had permitted ; so that that circumstance carries the case no farther than Wynn v. Petty.

Reader, contrà, denied that the rule was so strict against the bail as to oblige them at all events either to render or pay the money; and he cited Merrick v. Voucher (a), Wood v. Mitchell (b), Postellv.Williams (c), as shewing that the rule admitted of several exceptions ; and referred also to Cock v. Bell (d) for the distinction upon which the Court there acted in refusing further time to render, viz. that it did not appear that the principal could not be removed without danger to his own life or to others. Here that does appear, and therefore would be sufficient excuse even if the bail had it in their power to bring up the principal ; but they have no such power in this case, he being in custody under legal process, and they have done every thing they could in order to remove him.

Lord ELLENBOROUGH, C. J. The rule in Wynn v. Petty, though a very strict one, proceeded on reasons of sound policy. That was a case where it certainly was stated that it would endanger the life of the principal to remove him, and yet time to render him was refused; but the case goes no further than to shew that where the inconvenience arises from the act of God, it ought rather to be borne by the bail than by the plaintiff; and that the Court, in order to obviate false

(a) 6 T. 50.
(c) 7 T. R. 517.

(6) Ibid. 247.
(d) 13 East, 355.

and

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