1829. ANOTHER v. with." There is some conversation about her SIMPSON and being ready in two days; but this will not affect the construction of the written contract. The HENDERSON question, therefore, is, whether the words of that and ANOTHER. Contract are complied with, considering the circumstances of the ship, and the situation of the parties ? The word "forthwith," indeed, in strictness, means immediately; but it is plain that this cannot be the construction to be affixed to it here. It was known that she required some repairs; at least to be coppered, and some time must be allowed for that. On the other hand, it was known that she was wanted with the utmost expedition. Under these circumstances, the ship not being ready on July 4th, the plaintiffs renounce their contract, and bring this action against the defendants for their default in completing it. The question is, Ought the ship to have been ready on the 4th? if she ought, the plaintiffs were at liberty to reject their contract, as she was not ready. I think therefore that the question is, Whether the vessel could, with reasonable and proper diligence, have been made so? If the jury think on the whole, taking in all the circumstances which rendered the despatch of the repairs more or less difficult, that the vessel could not reasonably have been expected to be ready on July 4th, the defendants will be entitled to a verdict: if she ought to have been ready, the verdict should be for the plaintiffs. Verdict for the plaintiffs. Sir James Scarlett and Chitty for the plaintiffs. See inf. Granger v. Dent. 1829. EICKE, Gent., one, &c., v. NOKES. GUILDHALL, &c. and ASSUMPSIT for work and labour, money paid, action can be maintained against a cer tificated bank- compounded with his credicommission, and his effects duced 15s. in under it. the pound tors before his The bankruptcy and certificate were proved; mission, albut Williams for the plaintiff produced a compo- though he has sition deed between the bankrupt and his creditors, executed before the commission; and insisted that, as it did not appear that the bankrupt's estate had produced 15s. in the pound under the commission, his bankruptcy and certificate did not furnish any answer to the present action, although they protected his person for arrest and imprisonment, not privileged under the 6 G. 4. c. 16. s. 127. have not pro An attor ney's clerk is from answering whether he has received a parti LORD TENTERDEN C. J. I think the provisions cular paper of that section do not prevent the bankruptcy and from the client. (a) It is not sufficient evidence of delivery of a signed bill at the defendant's abode, that a signed bill is delivered at a particular place not shown to be his abode, and that he afterwards gives this to his present attorney, who attends the taxation of costs. The defendant's having signed an admission of the debt to enable the attorney to prove it under a commission of bankrupt then subsisting against him, is no admission of the delivery of a signed bill, and does not dispense with the necessity of such proof in an action subsequently brought against him for the same claim. An attorney may prove his bill under a commission of bankrupt, without delivering a signed bill. (a) See Bevan v. Waters, sup. 235. 1829. EICKE v. NOKES. certificate from being a bar to this action. They protect only the person of the bankrupt, not his future estate and effects: but they vest these latter in the assignees under the commission. It would seem extraordinary that the bankrupt's person should be protected, and the property vested in the assignees, and yet the action be maintainable. Williams. At all events, if the assignees do not interfere, as between the plaintiff and defendant it is a good answer: just as an uncertificated bankrupt has been held entitled to maintain trover for goods acquired after his bankruptcy, and other similar actions, if the assignees make no claim. (a) LORD TENTERDEN C. J. There is, perhaps, too much doubt on the point for me to decide it here, so as to shut out the defendant from other matter material to his defence. The cause therefore had better proceed. Part of the claim was on an attorney's bill. A signed copy had been delivered at a particular place, but no direct proof was given that it was the abode of the defendant. Williams however called the clerk of the defendant's attorney to prove that he had received such a copy from the defendant. Sir J. Scarlett objected to his giving evidence of this. He could only have received it as clerk (a) Webb v. Fox, 7 T. R. 391. Fowler v. Down, 1 B. & P. 44. Drayton v. Dale, 2 B. & C. 293., and the cases cited there. to the defendant's attorney, and if so, the communication was privileged. Williams answered that the only circumstance respecting which he enquired, was the mere fact of the receipt of a particular paper from the defendant and Lord Tenterden C. J. admitted the evidence. Finally, the evidence of delivery amounted only to this. It appeared that a bill had been delivered at a particular place, which was not shown to be the defendant's abode; and, as above stated, that the defendant had delivered it to his attorney's clerk and it was also shown that the attorney's clerk had attended on the taxation of costs; and the master's allocatur was produced. An admission was also produced, signed by the defendant, to enable the plaintiff to prove the amount under the commission. The counsel for the plaintiff contended that these circumstances were enough to enable him to recover the admission being a waiver of the necessity of delivering a signed bill; and the attendance to tax the costs affording a presumption of its due delivery, if that were necessary. And Curwood stated that it had recently been held to afford such a presumption, in C. P. LORD TENTERDEN C. J. It is a presumption which I am not bold enough to make. Where an act of parliament requires a particular thing, I must see that it is proved. The admission also furnishes no answer to the objection. The plaintiff Y 1829. EICKE บ. NOKES. 1829. EICKE V. NOKES. might prove under the commission without proving the delivery of a signed bill; the defendant signs an admission of the amount, to facilitate his doing So. I cannot consider this either as an admission that such a bill had been delivered, or as a waiver of his right to have such a one before he can be personally charged upon such a claim. Williams and Curwood for the plaintiff. Nonsuit. Sir J. Scarlett F. Pollock and Peoly for the defendant. A new trial was afterwards moved for, on the ground that the plaintiff's claim was not one requiring the delivery of a signed bill under the statute, and a rule nisi was obtained; but no question was made as to the points stated above. GUILDHALL, FELLOWES and Another v. WILLIAMSON. Feb. 28. In case for a false representation of the solvency of A. B., whereby the CASE for falsely and fraudulently representing to the plaintiffs that one Duffy was in solvent circumstances, and worthy to be trusted. plaintiffs trusted him with goods; their declarations, at the time, that they trusted him in consequence of the representation, are admissible in evidence for them. An action commenced before 1st January 1829, but tried after that day, on such a representation, made by parol before the statute 9 G. 4. c. 14., is maintainable. |