Willding against Temperley
| Jurisdiction | England & Wales |
| Judgment Date | 12 May 1848 |
| Date | 12 May 1848 |
| Court | Court of the Queen's Bench |
English Reports Citation: 116 E.R. 741
QUEENS BENCH
[987] willding against temperley. Friday, May 12th, 1848. In an affidavit filed by a creditor, under stat. 5 & 6 Viet. c. 122, s. 11, to bring a debtor before the Court of Bankruptcy, quaere, whether it be sufficient, in every case, to state the items of demand on the creditor's side, or whether, if there be cross claims, he is bound to state also the amount for which he gives credit. Semble, per Lord Denman C.J. and Patteson J., that he is. Semble, per Erie J., contra. But, if the creditor, in hi affidavit, and in an account referred to by such affidavit and annexed to it, and served upon the debtor, states the total of his claim as 1001., and the account specifies all the items of charge, which are summed up, and amount to 1001., and credit is then given for a gross sum of 111., which, at the 742 WILf,DtNG V. TEMPKRLKY 11 Q. B. 988. foot of the account is subtracted from the 1001., and the balance, by mistake, set down at 991.: Held that, if the creditor afterwards brings an action and recovers leas than 991., the debtor is not therefore entitled to his costs under stat. 5 & 6 Viet. c. 122, a. 19 : for the affidavit must be taken as, substantially, alleging a claim of 891. only. Butt, in thia term, obtained a rule to shew cause why the above named defendant should not be allowed his costs of suit, to be taxed, &c., and why the plaintiff should not pay or allow such costs to the defendant, pursuant to stat. 5 & 6 Viet. c. 122 (a) ; [988] and why plaintiff should not be restrained from taking out execution for the amount recovered in this action, unless the same should exceed, and then only for the excess beyond, the costs taxed for defendant; and why plaintiff should not be restrained from taking his execution for costs; and why a suggestion should not be entered on the record under sect. 19 of the Act; and why plaintiff should not pay the costs of this application. It appeared by the affidavit on which the rule was granted that the defendant, being a trader, was served with a summons from the Court of Bankruptcy under stat. 5 & 6 Viet. c. 122, s. 11, grounded on an affidavit of the plaintiff, a copy of which (and of the account and notice therein mentioned) was annexed to the present affidavit, and which stated as follows. " That George Can1 Tomperley, of," &c., "coal merchant, is justly and truly indebted unto this deponent in the sum [989] of 991. 19s. 7d., for goods sold and delivered, and for money lent, to the said G. C. T., and at his request: and " " that the said G. C. T., as this deponent verily believes, is a trader," &c. " and resides," &c. ; "and that an account in writing of the particulars of the demand of the said John \Villding, amounting to the said sum of 991. 19s, 7d., with a notice thereunder written, in the form prescribed by the statute," &c., " purporting to require immediate payment of the said debt, is hereunto annexed :" (a) "An Act for the amendment of the law of bankruptcy." Sect. 11 enacts: " That if any creditor of any trader, within the meaning of this or any other statute relating to bankrupts now or hereafter to be in force, shall file an affidavit in the Court authorised as hereinafter provided to act in the prosecution of fiats in bankruptcy in the district" "in which such debtor shall reside, or in the Court of Bankruptcy if such debtor shall not reside in any such district, in the form specified in Schedule hereunto annexed (A, No. 1), of the truth of his debt, and of the debtor, as he verily believes, being such trader as aforesaid, and of the delivery to such trader, personally, of an account in writing of the particulars of his demand, with a notice thereunder requiring immediate payment thereof," the Court may summon such...
To continue reading
Request your trial