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HASTINGS and Others v. Wilson and Others.



Assignees THE plaintiffs sued as executors of Sir Elijah are not concluded by

Impey, Knt. deceased : the defendants were putting up the premises to assignees of Milton, a bankrupt.

so la sell : they may make an experiment to see This was an action of covenant for rent; and the if the lease be beneficial; question was, whether the defendants, in the chabut, in a case where they racter of assignees, were liable to the payment of pilis up the pre- rent. The plaintiffs charged them as assignees

of tion, and found

the term, by derivation from the first lessee Milton. chaser, and

Milton, who had occupied the premises in quesreceived a deposit; but the tion, became a bankrupt in April 1815, when the contract of sale after defendants were chosen assignees. They paid a wards went off, without quarter's rent, ilnd on the 8th of June put up the the assignees shewing any

premises to auction ; the premises were knocked reason why down to a purchaser for 4001., who immediately they did not enforce the paid a deposit of 991. Owing to some cause which sale: Held, that they were did not appear in evidence, but which was alleged payment of by the plaintiffs’ counsel to have been a misdesignees of ali scription of the premises, the purchaser refused to the estate, and complete the contract, and the purchase money Interest, &c. of the banke was returned. In February, 1816, the premises rupt, in the premises." were again put up to auction, when, no purchaser

offering, they were bought in by the assignees.

Best, serjeant, for the plaintiffs, contended, that under these circumstances the defendants were liable as assignees of the term. He admitted that assignees had a reasonable time to decide whether




they would take the lease of which they find the bankrupt possessed, or not. That the mere act of putting the premises up to auction would not make the assignees liable ; but in the present case a purchaser was found and accepted, and it was their fault that the premises were not sold: at all events, after the first treaty went off, they ought to have delivered up the premises ; but they make a second attempt nine months after. How long a time were assignees to claim for their election, and to keep the landlord of premises without his rent in a state of uncertainty?

Vaughan, serjeant, contrà, relied on Turner v. Richardson, 7 East 335. It was admitted in that case that assignees might make an experiment to see if the lease were beneficial : if they were concluded, by a mere offer of sale, their situation would be most perilous. There was no material distinction between the present case and the one cited. A purchaser was indeed found; but he is stated to have made an objection : that objection might be reasonable, and not imputable to any misconduct in the assignees. If the mere offering to sell had been holden not to conclude the assignees, neither ought they to be concluded in a case where, after the offer to sell, the bidder has not perfected his bidding:

Gibbs, C. J.-I am of opinion that the assignees are bound under the circumstances; I have no evidence to satisfy me why they did not enforce the contract of sale. They put up the premises to auction, find a purchaser, and receive a deposit.


In the absence of evidence to the contrary, I must

presume that contract of sale to be now in force. HASTINGS The contract of sale fixes them with possession, Wilson. and they must shew why they did not enforce the

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The plaintiffs had a verdict.

Best, serjeant, and Parke, for the plaintiffs.

Vaughan, şerjeant, for the defendants.





July 10.

Where to

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THIS was an action of debt brought upon two
bonds, given by defendant to the plain- the defendant

debt on bond, tiff; one for 8001, the other for 3001.

There pleaded, that

1,1001. was had been long and intricate accounts between the due, and no

more, and un. parties, and the plaintiff claimed a sum of money dertook to dis. due to him for interest upon the two bonds.

charge himself
therefrom by
a set-off, and

the plaintiff The defendant pleaded non est factum, and a repliedrene set-off; in which he admitted 1,1002. to be due to larger sum was the plaintiff, and no more; of which sum of 1,1001. the sum of he undertook to discharge himself by his 'set-off. that the plain

1,7501. : Held, The plaintiff replied generally, that more than

to prove that 1,1001. was due; to wit, the sum of 17501.

1,150l. was

tiff was bound

more than


Vaughan, serjeant, for the defendant, contended, that it was incumbent on the plaintiff, by the issue which he had taken, to prove that more than 1,1001. was due from the defendant.

Best, serjeant, contrà.

Gibbs, C. J.-If the defendant plead a set-off to




debt upon bond, he is bound to state the precise sum due upon the bond, before he can set off any cross demand. He has admitted that 1,1001., the amount of the two bonds, is due, and he undertakes to discharge himself of that sum by his set-off: the issue which the plaintiff has taken is, that more than 1,1001. was due ; viz. the sum of 17501. ; but that is pleaded under a scilicet. I am of opinion, therefore, that the plaintiff must prove that more than 1,1001. was due.

The defendant's counsel then proved a set-off, to the amount of 1,1001., and the plaintiff was nonsuited.

Best and Copley, serjeants, and Marshall, for the plaintiff.

Vaughan, serjeant, and Comyn, for the defend


Vide Symonds v. Knox, 3 ritt, 4 T. R. 460.
T. R. 65. Grimwood v. Bar-

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