the suit of another, upon any writ out of the Courts at Westminster, and imprisoned or detained in prison for want of sureties for his appearance to the same, the Plaintiff shall and may by virtue of that act, before the end of the next Term after the writ shall be returnable, declare against such prisoner in the court out of which the writ shall issue, and shall or may cause a true copy thereof to be delivered to such prisoner or to the gaoler; to which declaration the prisoner shall appear and plead, and if he does not, the Plaintiff shall have judgment in such manner as if the prisoner had appeared in the said court, and refused to answer or plead to such declaration. Here is a new mode of declaring against a prisoner substituted in the room of the old course, which was to bring him up and charge him with a declaration. The new mode is declaring in court, and delivering a copy of the declaration to the prisoner or gaoler; as to the time, there is in effect no alteration. By the old course, they were to bring up the prisoner to charge him within two Terms; in the new mode they are to declare, &c. before the end of the next Term after the writ shall be returnable. The statute goes no further than to direct in general terms, that the prisoner shall appear and plead to this declaration, and in default the Plaintiff is to have judgment as if the prisoner had appeared and had refused to answer or plead. The prisoner is to appear and plead according to the course of the court. The effect of this branch of the statute is simply to establish, that in this form the Plaintiff is to declare, that this shall be the declaration to which the prisoner shall appear and plead. The course of the court, as to the prisoner appearing and pleading, is governed by practice, and by several rules, and amongst others, by a rule of Easter Term 5 W. & M. Reg. 3.; which (after providing that the copy of the declaration shall not be delivered to the prisoner before the return of the process) provides that no rule shall be given for the Defendant in custody to appear and plead to any declaration, until an affidavit be filed with the proper secondary of the delivery of the copy of such declaration, and of the time when, and the person to whom the same copy was delivered. The filing of this affidavit, and delivery of the copy, were first introduced here for a purpose collateral to the mode of declaring. Then follows the rule, that if the declaration be not entered or left in the office before the end of the next Term after the writ be returnable, and affidavit made and filed in manner aforesaid, before the end of twenty days after such Term (Easter Term excepted, and within ten days after Easter Term) the prisoner shall be discharged upon the entering of his appearance with the proper officer, by writ of supersedeas, according to the ancient practice of this Court. This rule adds a new term to the rule for declaring as laid down by the statute: by the statute they were to declare and leave a copy before the end of the next term, now they are also to file the affidavit of the delivery of the copy within a limited time. If they do not declare and leave a copy within the time limited, the prisoner is supersedable. In the present case the Plaintiff has declared in time, and has filed. his affidavit in time, but he has not left a copy in time. The 8 & 9 Will. 3. c. 27. s. 13. which respects prisoners in the Fleet, was probably made in consequence of a doubt whether the former statute extended to them, and provides that it shall be lawful for any person after filing or entering a declaration with the proper officer, to deliver a copy of such declaration to the defendant, or to the officer of the Fleet, and after rule given thereupon, to be out in eight days at most after delivery of the copy, and affidavit made of the delivery, to sign judgment, as if the defendant had been actually charged at the bar with the action. Here filing and entering the declaration with the proper officer, and delivering the copy, is made sufficient, and from hence we may collect, that declaring in the statute 4 & 5 W. & M. and filing or entering the declaration with the proper officer in this statute mean the same thing; and to both is superadded delivering a copy, as that which shall be tantamount to the ancient mode of charging with a declaration. In the rule of Easter, 8 Geo. 1. which respects the declaring against prisoners who have surrendered in discharge of their bail, and provides that the Defendant shall be entitled to his supersedeas, unless the Plaintiff shall declare against the Defendant within two Terms after the render, the language is simply, "shall declare;" but this includes filing or entering the declaration and delivering the copy. This may be collected from the case of Clavey and Watts, 2 Bl. 786. where the Court ordered a supersedeas, because the declaration was not delivered to the party himself or to the turnkey in time. That was a strong case, for the declaration had been delivered in time to the Defendant's attorney, the Defendant having put in special bail by attorney, and afterwards surrendered. Respecting detainers of prisoners in the Fleet, it is ordered by another rule, that no copy of a declaration delivered at the Fleet prison against any person there shall be a sufficient charge to hold such prisoner prisoner to bail, or to detain such prisoner for want of bail, un- T 1796. BLYTH v. HARRISON. June 15th. A. B. C. & D. BOLTON . PULLER and Others, Assignees, &c. 3d. Lear in a banking-` house at Liver pool, and C. & D. also carried on a separate mercantile concern in London; J. S. having accepted bills payable at the house of C. & D. employed 4. B. C. & D. to get them paid accordingly, and agreed to deposit with them good bills indorsed by him, for the purpose of enabling them so to do; A. B. C. & D. debited J. S. in account for his acceptances, and credited him for all the bills which he deposited; some of the bills so deposited by J. S. were remitted by A. B. C. & D. to C. & D. upon the general account between the two houses, and before any of the acceptances of J. S. became due both houses failed, and J. S. was obliged to pay his own acceptances; held that the assignees of C. & D. were entitled to retain against J. S. the bills remitted to them by A. B. C. & D. Held also, that it made no difference that one of the bills remitted did not arrive in London till after the bankruptcy of C. & D. though sent by A. B. C. & D. before that event. («) (a) Vide Carstairs v. Bates, 3 Campb. 301. Collins v. Martin, post, 649. Jacaud v. French, 12 East, 317. 323. Williams v. Everett, 14 East, 582-594. Scott v. Franklin, 15 East, 428. 436. Bosanquet v. Wray, 6 Taunt. 597. Thompson v. Giles, 2 B. & C. 422. 426. The Robarts Law Sep 10 ch 505 (Exple Gomez Lam Rah 10 ch 1852 1796. BOLTON t. PULLER and The Defendants pleaded the general issue, and at the trial before Eyre Ch. J. at the Guildhall sittings after Michaelmas Term, 1795, a special verdict was found to the following effect: John Bolton was a merchant at Liverpool; John Forbes and Daniel Gregory, for some years, and until they became bankrupt, were copartners, and carried on business as merchants in London, under the firm of Burton, Forbes and Gregory. On the 1st of May, 1774, Forbes and Gregory entered into partnership with one Charles Caldwell and one Thomas Smith, in the trade and business of bankers, to be carried on at Liverpool, under the firm of Charles Caldwell and Co. and so continued to trade till that house became bankrupt. The house at Liverpool had dealings and transactions with Forbes and Gregory, carrying on business as merchants under the firm of Burton, Forbes and Gregory, in London; and between the two houses in Liverpool and London, there was an open account current. Bolton for some years, and until the house at Liverpool became bankrupt, employed that house as his bankers; and they used to procure bills which had been accepted by him, payable at the house in London, to be there paid when they fell due. Those payments when made were carried by the house in London to their account with the house at Liverpool, and by the house at Liverpool to their account with Bolton. In the banking account between Bolton and the house at Liverpool, Bolton was made debtor for cash received of them, and for bills accepted by him payable at the house in London; and was credited in such account for all bills and cash paid by him into the said house. An interest account was kept between Bolton and the house at Liverpool, which was balanced every three months; and the latter was also allowed a profit on the said account of one-quarter per cent. on bills and cash paid, either by them or by the house in London, on their account, for the use of Bolton. Bills having been accepted by Bolton to the amount of 19,7021. payable at the house in London, on the 28th of February 1793, he proposed to the house at Liverpool, that they should procure the same to be paid as they fell due by the house in London, and that to enable the house at Liverpool to provide for such payments, he should deliver to them certain other bills of exchange whereof those mentioned in the declaration were parcel with his indorsement thereon; to this proposal the house at Liverpool agreed. In pursuance of this agreement, Bolton on the 1st of March 1793, and on other days between that day and the 16th of March in the same year, delivered to the house at Liverpool, several bills of exchange, amounting in the whole to the sum 1796. BOLTON v. PULLER sum of 11,5831. 2s. 9d.; among these was the bill for 40007. mentioned in the declaration. On the 16th of March 1793, he delivered to the same house other bills, with a check on that house (which they received as cash,) to the amount of 9121. 1s. Od.; and Others. among these was the bill for 3981. 18s. 3d. also mentioned in the declaration. All these bills were the property of Bolton, and duly indorsed by him; the bill for 40007. having also previously to the delivery been accepted by him. On the 4th March 1793, the bills accepted by Bolton, payable at the house in London, were by the house at Liverpool entered on the debit side of the account between them and Bolton; and the bills delivered by Bolton to the house at Liverpool, were by them carried to his credit in the same account at the times when they were respectively delivered. On the debit side of the books of the house at Liverpool, it appeared that Bolton's acceptances, amounting to 19,7027. 13s. 10d., were entered thus: —“ March 4th, 55 acceptances due in April, 19, 702l. 13s. 10d.;” and on the credit side, the bills delivered to the house by Bolton were entered, some with the date of their delivery and the day on which they were to fall due, and some with the former only. On the 2d of March 1793, the house at Liverpool remitted the above-mentioned bill for 40007. together with other bills to the amount in the whole of 30,000l. and upwards, to the house in London, to be carried to the account of the house at Liverpool; and on the 16th of March, they remitted the abovementioned bill for 3981. 18s. 3d. together with other bills, amounting in the whole to 8000l. and upwards, to be carried to the same account. This last bill for 3981. 18s. 3d. was received by the house in London on the 18th of March 1793. Some of the bills delivered by Bolton to the house at Liverpool were negotiated by them, and the value received to their own use. On the 28th of February 1793, and from thence till the bankruptcy of the house at Liverpool, the house in London was largely in advance to the house at Liverpool. On the 16th of March 1793, the house at London became insolvent, and on the 18th of the same month a commission of bankruptcy issued against them, under which the present Defendants were assignees. On the same day the house at Liverpool also became bankrupt, and a joint commission of the same date issued against Charles Caldwell, Thomas Smith, John Forbes, and Daniel Gregory, as partners in the banking-house at Liverpool. The house at Liverpool at the time of their bankruptcy was indebted to Bolton in the sum of 20001. and upwards; and none of that parcel of bills, amounting to 19,702l. 13s. 10d. accepted [ 542 ] |