Page images
PDF
EPUB

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

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.

1812.

PARKER

against

SMITH.

UPO

FARQUHARSON against FOUCHECour.

Thursday, Nov. 26th.

Plaintiff in an

inferior court,

from which a ed by habeas

cause is remov.

rule for better

bail given, is not entitled

to

a procedendo,

the defendant

PON a rule nisi for setting aside a writ of procedendo for irregularity with costs, it appeared that the cause was commenced in Trinity vacation in the Mayor's Court, removed by habeas corpus, and a rule for better corpus, bail given on the 2d of November, which expired on the 6th; on which day the defendant, being in custody of the sheriff of Middlesex in execution in another action, his attorney issued a habeas corpus, directed to the sheriff, &c. and procured a return to it on the same day, intending to have rendered the defendant; but it being lodged with the officer in whose custody the defendant was at a quarter past nine at night, too late to render him, the officer took him to Newgate in execution in the other action, and kept him there till the 9th, on which day

the

after render of and notice of although

such render,

after the day on which the rule

render be made

for better bail

expires.

1812.

FARQUHAR

the defendant was rendered in this cause and committed to the custody of the marshal. On the 11th notice of render was given to the plaintiff's attorney, notwithFOUCHECOUR. Standing which the plaintiff, on the 12th, issued a procedendo, which was allowed on the 13th.

SON

against

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 (b). He admitted that if the procedendo had issued on the 7th the render would not have been good.

Lord ELLENBOROUGH, 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.

Rule absolute.

Per Curiam,

(a) 5 East, 533.

(b) 5 T. R. 401. 534. 7 T. R. 529. 2 N. R. 85. WINSTANLEY

1812.

WINSTANLEY against GAITSKELL and NEWCOME.

A

Thursday,

Nov. 26th.

allow time to

principal being in custody under process of another Court, it appears on

the return made

to a habeas cor

pus issued by

CAPIAS ad satisfaciendum issued against the de- The Court will fendants, returnable the last day of last Trinity the bail to surterm, 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 discharge, sued out a habeas corpus, under which Gaitskell was brought up; but Newcome, in consequence of an accident which had caused a dislocation of his ancle and compound 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 of such custody place commanded in the writ. Whereupon Gaitskell only was rendered, and an exoneretur as to him was entered 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.

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

(a) 4 East, 102.

that he cannot

without danger

to his life, and

that such im

possibility still

continues.

VOL. XVI.

D d

custody

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), Postell v. 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.

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

and

« PreviousContinue »