In

of the defendant himself or of his assignees (he having
subsequently become bankrupt), although the latter
were not aware until the 7th of April of the irregularity
existing in the judgment. [Tindal C. J. In that case
the assignees appear to have known of the objection
on the 7th of April; the delay therefore was unreason-
able, a period of twenty-one days having elapsed.]
Bate v. Lawrence (a), judgment was entered up on the
30th of November 1843, upon a warrant of attorney:
on the 4th of December, a writ of fi. fa. issued, under
which the defendant's goods were seized and sold on
the 6th. On the 18th of December, a fiat issued against
the defendant, upon an act of bankruptcy (of which
the plaintiff had no notice) committed on the 28th
of November: the adjudication took place on the 21st
of December; and on the 3d of January 1844, assignees
were chosen. On the 16th of January the solicitors to
the fiat were aware that the plaintiff's judgment was
founded on a warrant of attorney. It was held that a
motion on the first day of Easter term 1844, to set aside
the judgment and execution, on the ground that it was
not signed in strict pursuance of the authority given by
the warrant of attorney, was too late.

Sir T. Wilde Serjt. in support of his rule. The affidavits filed in answer to the defendant's rule shew that the judgment-roll was not carried in until the 19th of April. The instructions to make the motion were given on the 22d; and the rule was moved for on the 25th. There is therefore no ground for saying, that the assignees have been guilty of laches.

TINDAL C. J. The judgment and execution must be set aside; but we are of opinion the assignees have

(a) Ante, p. 405.

1844.

BROOKS

v.

HODSON.

1844.

BROOKS

v.

HODSON.

asked too much in seeking to set aside the consent. We think that they are entitled to the costs applicable to that part of the rule on which they have succeeded, and that no action should be brought.

Rule absolute, (which was drawn up in the fol

lowing terms), to set aside the final judg

ment signed in the cause and execution issued thereon, and that the plaintiffs pay to the defendant and his assignees, or their respective attorneys, the costs, so far as the same shall be applicable to the application to set aside the judgment and execution; and that payment be made to the assignees or their attorney, within a week, of the amount of the proceeds of the goods seized under the said writ of execution; and that the defendant and his assignees be barred from bringing any action against the plaintiffs in respect of the said writ or the proceedings taken thereon.

1844,

DOE dem. The Governors of the GREY-COAT

HOSPITAL V. ROE.

May 30.

declaration in ejectment upon a

stranger on the premises, with

an admission

by the tenant's wife, that the

declaration

and notice had come to

her hands, was held sufficient for a rule nisi for judgment against the casual ejector.

CHANNELL Serjt., moved for judgment against the Service of a casual ejector. As to two of the tenants in possession, viz. Anderson and Hennesley, his affidavit stated a service of the declaration and notice, "by delivering the same to one Charlotte East on the premises mentioned in the declaration (Anderson and Hennesley being at the time from home), the said Charlotte East promising the deponent that she would, on the return home of the said Anderson and Hennesley, immediately give the said copies of the said declaration, the one to the said Anderson and the other to the said Hennesley, as she had been requested to do by the deponent." The affidavit alleged that the deponent read over, and explained, the notices to Charlotte East; that the deponent, on the 21st instant (a), attended on the premises, and there saw Anderson's wife, who informed the deponent that her husband was still from home, and absent from town, but that she had received the copy of the declaration and notice, and would give them to her husband; and that the deponent then explained to her the intent and meaning of the declaration and notice and of the service thereof. The affidavit stated that the other tenant had, on the same day (b), admitted that the declaration and notice left for him, had come to his hands. The learned serjeant submitted that the affidavit disclosed sufficient matter to warrant a rule nisi.

1844.

May 30. LACKINGTON and Others, Assignees of MAY, a Bankrupt, v. ELLIOTT.

of December,

On the 29th ASSUMPSIT, for money had and received by the defendant, to the use of the plaintiffs as assignees of James May, a bankrupt. Plea, non assumpsit.

1842, A. distrained for 1201., for rent due to him

from B. at Michaelmas,

in the possession of one C., to whom they had been conveyed by

At the trial of the cause before Tindal C. J., at the sittings in London after last Hilary term, it appeared that in 1835, May became tenant to the defendant of a the goods of shop, &c. at Clapham, at the rent of 351. payable B. being then quarterly. At Michaelmas 1842, the arrears of rent amounted to 1207. On the 23d of December, the defendant delivered a warrant to one Carter, authorizing him to distrain for that sum. Carter gave the warrant to one Taylor, who demanded the rent on the 29th, and was referred by May's wife to Chester, an attorney. Taylor accordingly applied to Chester, who informed him that May had executed a bill of sale of all his property to him, Chester, for the benefit of his creditors, but observed that it was useless to refer to him, as there tween 4. and had been no sale. Taylor thereupon returned to the premises and made the distress. At this time an auc

deed on the 13th of December, in

trust for B.'s

creditors. On

the 3rd of January,

1843, it was agreed be

C. that the rent should

be paid, A. consenting to forego the quarter's [rent due at Christmas. The goods were accordingly appraised and condemned at 1367., being the amount of the rent and expenses, and that sum was handed over to A. On the 9th of January, a fiat issued against B., the act of bankruptcy being the execution of the deed:Held, that so much of the sum so paid to A., as exceeded a year's rent, was not money received to the use of the assignees.

Quare, whether a "distress" is a "transaction" within the 2 & 3 Vict. c. 29.; and, if so, whether a notice of an act of bankruptcy given to the broker's man, would be sufficient to bind the landlord.

Notice that a party has executed a deed conveying all his property for the benefit of his creditors, is a notice of an act of bankruptcy.

the

tioneer of the name of Price was already in possession
making an inventory preparatory to a sale of the goods
on behalf of Chester, as trustee. The conveyance, on
13th of December 1842, impowered Chester to sell the
property, and to apply the net proceeds ratably amongst
May's creditors, Taylor remained in under the distress
until the 3d of January 1843, when it was arranged
that the defendant should retire and should abandon
his right to distrain for the quarter due at Christmas,
on being paid the 120%. and the costs of the distress. In
pursuance of this arrangement the goods were appraised
and condemned at 136., which sum covered 1207. for
the rent, and 167. for expenses, and was paid by Price
to Taylor, by whom it was handed over to the de-
fendant's attorney.

On the 9th of January 1843, a fiat issued against May, the act of bankruptcy relied on being the conveyance of the 13th of December, 1842.

For the defendant, it was insisted that the action was not maintainable, the money having been paid by Price for a good consideration, and there having been, in fact, no sale; and that, at all events, the transaction was within the protection of the 2 & 3 Vict. c. 29. (a), the notice to Taylor not being such a notice as would bind

(a) Which enacts "that all contracts, dealings, and transactions by and with any bankrupt, really and bona fide made and entered into before the date and issuing of the fiat against him, and all executions and attachments against the lands and tenements or goods and chattels of such bankrupt, bonâ fide executed or levied before the date and issuing of the fiat, shall be deemed to be valid, notwithstanding any prior act of bank

ruptcy by such bankrupt com-
mitted; provided the person or
persons so dealing with such
bankrupt, or at whose suit or
on whose account such exe-
cution or attachment have is-
sued, had not, at the time of
such contract, dealing, or trans-
action, or at the time of exe-
cuting or levying such execution
or attachment, notice of any
prior act of bankruptcy by him
committed."

1844.

LACKINGTON

v.

ELLIOTT.