the plaintiffs rely should not be replied by way of es toppel. (a) (a) The plaintiff might, it would seem, have demurred to the plea, the matter of estoppel appearing on the face of the declaration (vide antè, p.209.), Judgment for the plaintiffs. (b) and the plea containing no an- (b) And see Lainson V. 1842. SANDERSON v. COLLMAN. HENRY PRICE (suing by GEORGE, his Guardian) v. JAMES EDWARD DUGGAN. May 6. COSTS having been taxed for the defendant, upon To bring a the verdict obtained by him (a), the amount of party into the master's allocatur was demanded under a power of not paying attorney. Channell Serjt. moved for an attachment against the guardian, for his contempt in not paying the amount of contempt for the amount of taxed costs, pursuant to the master's allocatur, where pay of a power attorney, it is necessary to leave a copy the allocatur. The allocatur had been served upon the ment is deguardian, by shewing it to him and leaving with manded under him a copy thereof. The power of attorney had also been shewn to the guardian; but of this it did not appear that any copy had been left. He contended, that although in the case of an award, the service would have been insufficient, the same strictness is not required in the case of a refusal to pay costs after taxation. The party was bound to pay the moment the demand was made. TINDAL C. J. The reason is the same in both cases. The object for which the delivery of a copy of the (a) Vide ante, Vol. II. p. 641. of the power 1842. PRICE v. DUGGAN. power of attorney is required, is to afford an opportunity of ascertaining whether the party who demands the costs really has authority to receive them. Rule refused. May 6. BRANCKER and Another, Assignees of C. HUM- NEUX. An order was TROVER for 400 bales and 400 bags of cotton, of made by the the plaintiffs, as assignees. (a) court of Review substituting an other debt in lieu of that The third trial of the cause (b) took place before Lord Denman C. J., at the summer assizes for the southern division of Lancashire, in 1841. The defend of the petitioning creditor (under 6 G. 4. c. 16. s. 18.), stating that the court "doth declare that the debt of the said T. R. (the petitioning creditor) &c., is an insufficient debt to support the fiat, &c.; and it appearing that the debt of the said petitioners, proved by them under the said fiat, &c., was incurred not anterior to the said debt of the said T. R." &c. An action having been subsequently brought by the assignees, the order was amended by the court of Review, on the eve of a new trial, by introducing a recital contained in the petition upon which the order had been made, "that the said petitioners had duly proved a debt under the said fiat;" but no statement to that effect was inserted in the mandatory part of the order. The amendment was made without notice to the defendant: Held, that it was not necessary to give notice of the amendment to the defendant. Held also, that the amended order must be taken to operate from its original date, and not from the date of the amendment. But held further, that such amended order was insufficient, inasmuch as it did not adjudicate, as required by the statute, that the debt of the petitioners had been proved prior to their petition. (a) See the pleadings, antè, Vol. I. p. 710. (b) The rule was made ab solute for the first new trial in Trinity vacation, 1840, antè, Vol. I. 710.; for the second new trial, in Trinity term, 1841, antè, Vol. III. p. 84. 1842. BRANCKER ant had given notice to dispute the bankruptcy. It was proved that the fiat issued against the bankrupts on the 9th of June 1837, on the petition of one Roberts; and that the plaintiffs were appointed assignees on the MOLYNEUX. 12th of July following. The plaintiffs also put in the following order of the court of Review, dated the 25th of March 1839 (before action brought), substituting (under the 18th section of the 6 G. 4. c. 16. (a)) a debt due to Fletcher and Cravy, for that owing to Roberts. In this order, as originally framed, the clauses printed below in italics were not inserted. About ten days before the third trial, however, upon an application to the court of Review, the order was amended by inserting those clauses, and erasing the words placed between brackets. No notice of the application or of the amendment, was given to the defendant. "In the matter of C. Humberston and S. Frodsham, bankrupts. "Whereas Robert Andrew Fletcher, of Liverpool, in the county of Lancaster, merchant, and Edward Charles Cravy, of Flushing, in the state of New York, in the United States of America, merchant, and late copartners, did, on or about the 4th of May instant, prefer unto this court their petition in the above matter, setting forth, among other matters, that a fiat in bankruptcy, bearing date the 9th day of June 1837, was, on the petition of Thomas Roberts, duly awarded and issued (a) Which enacts "that if, after adjudication, the debt or debts of the petitioning creditor or creditors, or any of them, be found insufficient to support a commission, it shall be lawful for the Lord Chancellor, upon the application of any other creditor or creditors, having proved any debt or debts sufficient to support a commission, provided such debt or debts has or have been incurred By the 1 & 2 W. 4. c. 56., 1842. BRANCKER v. against the said bankrupts, under which they were duly found and declared bankrupts, and that the said petitioners had duly proved a debt under the said fiat, and MOLYNEUX. were creditors of the said bankrupts, for the sum of 150l., being the balance of an account for money lent and advanced to the said bankrupts, by the said petitioners, on the 13th day of May 1837; and that the same debt was incurred by the said bankrupts not anterior to the debt of the said petitioning creditor under the said fiat; and praying that this court would be pleased to order and allow the debt of the said petitioners to be substituted for that of the said Thomas Roberts, [in the said petition mentioned] in the proceedings under the said fiat [therein also mentioned], and that it might be proceeded in and deemed valid, and that the costs of the said application might be paid out of the estate and effects of the said bankrupts: now, upon hearing the said petition, and the affidavit of Robert Frodsham, gentleman, filed in support thereof, read, and what was alleged by Mr. S. of counsel for the said petitioners, and upon reading the affidavit of Frederick Frodsham, also filed in this matter, of the due service of the said petition upon the said Thomas Roberts, and also upon the said bankrupts, and upon Thomas Brancker the younger, and Thomas Martin, the assignees of the estate and effects of the said bankrupts; and no person appearing before this court on their behalf, this court. doth declare that the debt of the said Thomas Roberts, and on which the adjudication of the bankruptcy of the said C. Humberston and S. Frodsham was made, is and was an insufficient debt to support the fiat issued against the said bankrupts; and it appearing to the court that the debt of the said petitioners Robert Andrews Fletcher and Edward Charles Cravy, proved by them under the said fiat, or so much thereof as is sufficient to support such fiat, was incurred not anterior to the said debt of the said Thomas Roberts, and is an existing and sufficient debt to support such fiat: the court doth order that the said fiat be proceeded in, and that the costs of and occasioned by this application be paid out of the estate of the said bankrupts, being first taxed by the commissioners under the said fiat; but this order is not to prejudice any action pending under such fiat.” It was contended on the part of the defendant-first, that this order was inoperative against him, inasmuch as it had been made without notice to him; secondly, that, as then produced, it must be taken to speak from the time of the amendment, and not from the original date; and thirdly, that it contained merely a recital, and not an adjudication, that the substituted creditors had proved a debt under the fiat previously to their petition; and that, for these reasons, no sufficient petitioning creditor's debt was made out to support the fiat. His lordship declined to direct a nonsuit, but he reserved leave to the defendant to move to enter a nonsuit; and the case having gone to the jury, a verdict was returned for the plaintiffs, with 20861. damages. Channell Serjt., in last Michaelmas term, obtained a rule nisi, pursuant to the leave reserved, or for a new trial. He cited Muskett v. Drummond (a), Aireton v. Davis (b), Christie v. Unwin (c), and In re Clarke. (d) Bompas Serjt. now shewed cause. First, it sufficiently appears on the face of the order, that the substituted debt had been proved previously to the petition. In Muskett v. Drummond (a) the plaintiff produced an (a) 10 B. & C. 153., 5 M. & R. 210. (b) 9 Bingh. 740., 3 Moo. & Scott, 138. (c) 11 A. & E. 373., 3 P. & D. 204. (d) 3 Mont. & Ayrt. 609. |