Smith v Temperley
| Jurisdiction | England & Wales |
| Judgment Date | 13 January 1847 |
| Date | 13 January 1847 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 1191
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 4 D. & L. 510; 16 L. J. Ex. 105; 11 Jur. 244.
[273] smith . temferley. Jan. 13, 1847.-The plaintiff' sued the defendant for goods sold and delivered, and tiled au affidavit of debt in bankruptcy against him, under 5 & 6 Viet. c. 12'2, for 1041. 18s. fid. A summons issued against the defendant under that act, but, on his making affidavit that he believed he had a good defence to the demand, was dismissed by the commissioner. The defendant then pleaded a set-off, and at the trial at the assizes proved it to the amount of 291. 5s. Verdict for plaintiff' for £74. The judge granted a certificate for speedy execution, and on the 7th of August the plaintiff' signed judgment, taxed costs, and issued execution. On the 21st of November a rule was granted under 5 & 6 Viet. c. 122, s. 19, for entering a suggestion on the record, and for compelling the plaintiff to return to the defendant the monies paid by him under the execution, with costs; the ground being, that the plaintiff had no reasonable or probable cause for making the affidavit of rlobt in bankruptcy : -Held, per Curiam, that the motion was made too late; and by three Barons (Parke, 13., ha;sitante), that in cases where speedy execution is granted in vacation, under 1 Will. 4, c. 7, and executed before term, the defendant must apply within the first four days of the ensuing term, and, in other cases, before judgment has been signed and execution issued.-Qiuare, whether, under 5 & 0 Viet. c. 122, the plaintiff' had reasonable or probable cause for making an affidavit of debt in bankruptcy to the full amount of the defendant's original debt to him? [S. 0. 4 D. & L. 510 ; 16 L. J. Ex. 105; 11 Jur. 244.] Warren had obtained a rule, calling on the plaintiff to shew cause why he should not return to the defendant the monies paid by him under an execution against him, with costs, and why a suggestion should not be entered on the record, under 5 & G Viet. c. 122, s. 19,(a)2 the bank-[274] ruptoy law amendment act, and why the judg- (a)1 See Stone, v. Phillip*, 4 Bing. N. C. 37 ; Bird v. Cooper, 4 D. P. C. 128 ; UMen v. AiifflesKfi (Marquis), 10 Bing. 5G8; 4 Tyr. 92G ; AUchenoii v. Gicnjey, 2 Bing. 200 ; Wayward v. Phillips, 6 Ad. & E. 119. (a)'2 That section enacts, that, in every action brought after the commencement of this act [llth Nov. 1842], wherein any such [see sect. 11] creditor is plaintiff, and any such [see sect 11] trader is defendant, and wherein the plaintiff' shall not recover the amount of the sum, for which he shall have filed an affidavit of debt under the provisions of this act, such defendant shall be entitled to costs of suit, to be taxed according to the custom of the Court in which such action is brought, upon motion to be made in Court for that purpose, and upon hearing the parties by affidavit, that the plaintiff' in snch action had not any reasonable or probable cause for making such affidavit of debt in such amount as aforesaid, and provided such court shall thereupon, by a rule or order of the same court, direct that such costs shall be allowed to the defendant; and the plaintiff' shall, upon such rule or order being made as aforesaid, be disabled from taking out any execution for the sum recovered in any such action unless the sum shall exceed, and then in such sum only as the same shall exceed, the 1192 SMITH V. TEMPEftLEY 16M. &W. 275. mont should not be amended. It appeared, from the aHidavits produced in support of the rule, that the action was for butcher's meat supplied by the plaintiff to the defendant. The particulars of demand claimed 1031. 4s. 8.\d. Before plea, the plaintiff secved the defendant with a summons in the form No. .'i given by the schedule of 5 & 6 Viet. c. 122, claiming 1041. 18s. 5d. On the defendant's appearance before the commissioner in bankruptcy, he made an affidavit (under sect. 1.J) that he verily believed he had a good defence to the claim ; and the summons was thereupon dismissed. The defendant then pleaded a set-off for cows sold to the plaintiff. At the trial, at the Surrey Assizes, on the nth August, I84(i, the plea was supported by proof, and the plaintiff had a verdict for £74. A...
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