Collins v Benton
| Jurisdiction | England & Wales |
| Judgment Date | 20 May 1841 |
| Date | 20 May 1841 |
| Court | Court of Common Pleas |
English Reports Citation: 133 E.R. 992
IN THE COURT OF COMMON PLEAS
[861] collins v. benton. May 20, 1841. B. gives to A. a bill of exchange, drawn by C. and accepted by B., for 421., owing from B. to A. B. obtains his discharge under the insolvent debtors' act. A. sues C., and takes him in execution. To obtain C.'s discharge, B. gives A. a warrant of attorney for 521. lls. 3d., made up of the debt and costs, recovered against C., and (a) Which enacts, " That the power and authority of any arbitrator or umpire, appointed by or in pursuance of any rule of court, or judge's order, or order of nisi prius, in any action now brought or which shall be hereafter brought, or by or in pursuance of any submission to reference containing an agreement, that such submission shall be made a rule of any of His Majesty's courts of record, shall not be revocable by any party to such reference without the leave of the court by which such rule or order shall be made, or which shall be mentioned in such submission, or by leave of a judge; and the arbitrator or umpire shall and may, and is hereby required to proceed with the reference, notwithstanding any such revocation, and to make such award, although the person making such revocation shall not afterwards attend the reference; and that the court, or any judge thereof, may, from time to time, enlarge the term for any such arbitrator making his award." 2 MAN. & e. 862. COLLINS V. BENTON 993 A.'s costs of opposing B.'s discharge.-The warrant of attorney is available for the costs of the action against C., and for the costs of opposing B.'s discharge, but not for the amount of the debt on the bill recovered against C. In 1827, the defendant being indebted to the plaintiff in 421., accepted a bill for the amount, drawn by one Frederick Palmer, in favour of the plaintiff. In 1838 the defendant was discharged out of custody, and adjudged to be entitled to the benefit of the insolvent debtor's act as to the debt of 421., which had been duly inserted in the schedule to his petition. In the same year, the plaintiff obtained judgment against Palmer in an action on the bill, and took him in execution for the debt and costs recovered in that action. Afterwards the defendant applied to the plaintiff for Palmer's release from prison upon payment of a certain composition. The plaintifl consented to his discharge upon the defendant's executing a warrant of attorney to secure the payment of the balance of the debt and costs for which Palmer was in custody, and also the amount of certain costs which the plaintiff had incurred in opposing the defendant's discharge under the insolvent debtor's act. In September 1839, the defendant, accordingly, executed the warrant of attorney in question for 521. 1 Is. 3d.; and Palmer was released. Afterwards the defendant paid the plaintiff the sum of 151. on account. On the 25th of March 1841 the plaintiff signed judgment, and issued a ca. sa.; upon which the defendant was taken in execution for 371. 11s. 3d. the balance. The defendant thereupon paid 461. into the hands of the sheriff of Northamptonshire, under a protest against the legality of the arrest. Bompas Serjt., upon an affidavit of these facts, obtained a rule, calling upon the plaintiff to shew cause, why the warrant of attorney given by the defendant, [862] the judgment signed, and the writ of capias ad satisfaciendum issued thereon, should not be set aside ; and why the sheriff of Northamptonshire should not refund, to the defendant, or to his attorney, the sum of 461., paid into his hands by the defendant, under protest, on his caption thereon,-on the ground that the warrant of attorney had been given as a security for the payment of a debt, in respect of which the defendant had become entitled to the benefit of the...
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