1820. ALDISS against BURGESS. had received from his client, he believed the bail would have attended on the days mentioned in the notice. Comyn shewed cause. By the practice of the Court, the plaintiff would not be entitled to any costs, if the bail had justified, because there was no change of the bail. The plaintiff ought not, therefore, to be placed in a better situation, in consequence of the bail not having justified. ABBOTT C. J. The giving of these frequent notices of bail has become a matter of so much vexation, that it is fit to put a stop to the practice. In this case the attorney has sworn, that he believed, from his instructions, that the bail would have attended on the days mentioned in the notices. We think, therefore, in this case, that the attorney is excused. Whenever a proper case occurs, we will visit the defendant's attorney with costs; for it is his duty to take care that the bail will attend pursuant to notice. In the present case the rule must be made absolute against the defendant alone. Rule absolute. END OF TRINITY TERM. AN INDEX TO THE PRINCIPAL MATTERS. ACCORD AND SATISFAC- See PARTNER and PLEADING. ACTION, See SLAVE TRADE. An action at law is not maintain- Page 52 AFFIDAVIT TO HOLD TO See PRACTICE, 17. 59 borrower for the express purpose of settling losses on illegal stockjobbing transactions, to which the lender was no party, cannot be recovered back by him. Cannan v. Bryce, M. 60 G. 3. Page 179 2. Where A. under a contract to deliver spring wheat had delivered to B. winter wheat, and B. having again sold the same as spring wheat, had in consequence been compelled, after a suit in Scotland which lasted many years, to pay damages to the vendee; and afterwards B. brought an action of assumpsit against 4. for his breach of contract, alleging as special damage the damages so recovered: Held, that although such special damage had occurred within six years before the commencement of the action by B. against A., yet that the breach of contract, which in assumpsit was the gist of the action, having occurred and become known to B. more than six years before that period, A. might properly plead actio non accrevit infra sex anBattley v. Faulkner, H. 60 G. 3. and 1 G. 4. Where a bill of exchange pay 1. Covenant upon an indenture of ASSUMPSIT. 584 1. Money lent, and applied by the nos. 288 able at the house of A. had been there presented for payment, and dishonoured, and the acceptor afterwards remitted to A. a sum of money for the purpose of enabling him to pay the dishonoured bill, and also another of less value. And A. in answer stated the fact of the bill having been dishonoured, but added, that the money received should be carried to the acceptor's account, and did afterwards pay the smaller bill: Held, that the holder of the original bill could not maintain an action against A., there being no privity between them. Yates and Others v. Bell and Others, T. 1 G. 4. 643 4. Cer 4. Certain policies of insurance belonging to A. had been deposited by him as a security for a debt of 800l. at a banker's. B., who was acquainted with these circumstances, afterwards, at the desire of A., expressly undertook to take the policies and settle with H. W., and to pay in the amount which he might receive at the banker's to A.'s account there. Upon this undertaking the policies were given to him, and upon them he received the sum of 9491. A. having become bankrupt, and being then indebted to B. in a larger sum, the latter refused to pay over the money so received: Held, that the assignee of A. could not (even with the assent of the banker) maintain any action against B. for the breach of his undertaking. Chalmers v. Page, T. 1 G. 4. Page 697 ATTORNEY, See PRINCIPAL AND AGENT, 1. PRACTICE, 5. 1. In the investigation of a charge of felony before a magistrate, an attorney is only as a matter of courtesy permitted; but has no right to be present, nor can he comment on the evidence so as to apply the law to it, unless he be requested by the magistrate to give his opinion and advice upon the case. Rex v. Borron, H. 60 G. 3. and 1 G. 4. 432 2. A charge for preparing an affidavit of the petitioning creditor's debt and bond to the Chancellor, in order to obtain a commission of bankruptcy, is not a taxable item in an attorney's bill, within 2 G. 2. c. 23. s. 23. as being a charge at law or in equity, the affidavit not having been sworn, nor a commission issued. Burton v. Chatterton, E. 1 G. 4. 486 AWARD. The Court will not set aside an award on the ground that the arbitrators have decided contrary to law, unless the law be clear upon the subject; and, therefore, where the captain had sold, at an intermediate port, part of the cargo, at a price higher than it would have fetched at the port of destination, and, upon a reference to settle the average loss between the shipowner and charterers, the arbitrators (who were mercantile men) allowed for the actual value of the goods, when sold, and not for the price they would have fetched at the port of destination, the Court refused to set aside the award. Richardson v. Nourse, M. 60 G. 3. Page 237 BANKRUPTCY. 1. By the 49 G. 3. c. 121. s. 8., the certificate of a bankrupt is a bar, not only to any action at the suit of the surety for the recovery of money paid in discharge of the original debt, but to any action for the consequential damage accruing from the non-payment, by the bankrupt, of the original debt when due; and, therefore, where the acceptor of an accommodation bill brought an action against the drawer, who had become bankrupt, for not providing him with funds to pay the bill when due, whereby he had incurred the costs of an action, and was obliged to sell an estate, in order to raise money to pay the bill, the certificate was held to be a good bar. Van Sandau v. Corsbie, M. 60 G. 3. 2. Upon a motion for a prohibition to the Lord Chancellor, sitting in bankruptcy, it appeared, that the assignees had seized, as the property of the bankrupt, a farm, belonging 13 longing to A. B., and had kept it a long time and mismanaged it; and that the Lord Chancellor had referred it to the Master, to take the account between A. B. and the assignees, in respect of such property and of its mismanagement; and afterwards, upon his report, had ordered a certain sum to be paid to A. B. by the assignees, the commission having been previously superseded: Held, first, that the jurisdiction of the Lord Chancellor, sitting in bankruptcy, was not confined to the period during which the commission subsisted. Secondly, that he had not exceeded his jurisdiction, in ordering the Master to take an account, as to the mismanagement &c. of the property, nor in making the assignees personally liable, beyond the funds in their hands, for such mismanagement: Thirdly, that the Lord Chancellor had jurisdiction over all effects taken under the commission, as well those of strangers as of the bankrupt, and over the assignees, for all acts done by them in their character of assignees, by virtue or under colour of the commission: Fourthly, that, in cases where the Lord Chancellor has jurisdiction generally, this Court has no authority to revise his order: Fifthly, that no prohibition can be granted, after the final order of the Lord Chancellor, unless there be an original want of jurisdiction apparent on the face of the proceedings. Quære, whether this Court have authority to direct a prohibition to the Lord Chancellor, sitting in bankruptcy. Ex parte Cowan, M. 60 G. 3. Page 123 3. Where a person, entitled to take out letters of administration, neglected to do so, but remained in possession of the goods of the in testate, and being so in possession, became a bankrupt; and a creditor of the intestate, afterwards took out letters of administration, and claimed the goods from the assignees Held, that these goods were within 21 Jac. c. 19., being property in the possession, order, and disposition of the bankrupt, with the consent of the true owner, and that the assignees were therefore entitled to them. Fox, Administrator, v. Fisher, M. 60 G. 3. Page 135 4. A surety under an annuity-deed is not entitled, under 49 G.3. c. 121. s. 8., to prove the value of the annuity as a debt under the commission; and therefore, where such a surety had redeemed the annuity, subsequently to the bankruptcy, it was held, that he was entitled to maintain an action for the value against the bankrupt, who had obtained his certificate, and that, although the grantee had proved under the 17th section. Flanagan v. Watkins, M. 60 G. 3. 186 5. Where the assignees of an uncertificated bankrupt, by agreement, for a valuable consideration paid to them by a third person, had left the bankrupt's furniture, &c., in his possession, and afterwards, notwithstanding such agreement, seized the same; it was held, that they were justified in so doing, an uncertificated bankrupt not being entitled to retain any property against his assignees. Nias v. Adamson, M. 60 G. 3. 225 6. One of two assignees of a lease gave a bond to the lessee, by whom the assignment was made, conditioned for the payment of the rent to the lessor, and the performance of the other covenants in the lease, and for indemnifying the lessee against the non-performance of the cove nants, |