HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.
![handle is hein.slavery/ssactsengr0273 and id is 1 raw text is: COX V. MUNCEY
British or foreign, upon a just and equal footing, and so as that every creditor whose
debt or claim shall be admitted or established in the said court shall receive a rate-
able and proportional part of the assets of the said insolvent, according to the amount
of his debt, without reference to the time at which such debt shall have been claimed.
Then the 61st section enacts, that, if any such insolvent, his heirs, executors, or
administrators, shall, after such order for discharge in the nature of a certificate under
this act as aforesaid, be sued or arrested either on mesne or final process, or execution
shall issue against his or their property, for any debt, claim, or demand from which
the said insolvent shall have been discharged by such order, on his or their applica-
tion to any court having power to stay such proceedings, or to discharge from such
arrest, or to set aside such execution, and, upon proof to the satisfaction of such court
of such order, ahd that the debt or claim for which such proceedings are had is the
same from which the said insolvent has been discharged by such order as aforesaid,
such proceedings shall be stayed, and he or they shall be discharged from such arrest,
and such process of execution shall be set aside, and all further proceedings in the
suit in which such arrest or execution was shall also be stayed, and the said court shall
have power to award costs to the said insolvent, or his heirs, executors, or adminis-
trators as aforesaid, in case the said proceedings shall appear to the said court to have
been taken after notice of the said order, and without any reasonable cause for impeach-
ing the same, or to have been otherwise oppressive or vexatious. [Byles, J. Was
the debt here payable in England ?] No doubt it was. [Willes, J. You had better
look at the case of [374] Gibbs v. Fremwnt, 9 Exch. 25, before you admit th t.] The
59th section enacts, that, where the estate pays one third of the insolvent's debts, or
where creditors to that amount consent, the court may grant an order nisi for the
final discharge of the insolvent, appoint a time for hearing, and direct notices to be
given: and then comes a proviso which may give rise to some difficulty,- Provided
always, that such order shall not affect any creditor without the limits of the charter
of the East India Company, unless notice of the said order nisi shall have been directed
to be given in the Gazette in manner aforesaid, and a period of twelve calendar months
shall have elapsed between the date of the said order nisi and the date of the said
order to make the same absolute. The learned judge at Chambers thought that
proviso referred to creditors residing without the limits. [Willes, ,1. The 83rd
section, which is an analogous provision, throws some light upon that proviso. That
section says, that, in case any fiat in bankruptcy, whether under the provisions of
this act or otherwise, shall be issued against such insolvent trader as aforesaid, upon
which such insolvent shall be declared a bankrupt before such order for discharge in
the nature of a certificate as hereinafter mentioned, then and in such case such order
shall not operate as a discharge from the debt, claim, and demand of any creditor who
shall not have been resident within the limits aforesaid at any time between the filing
of the insolvent's petition or the adjudication, as the case may be, and the making of
such order.] It is submitted that these plaintiffs were creditors in India, though
residing in England. [Byles, J. Why not put this matter upon the record 7] It
would be a needless expense to plead this, if the court has power to give relief in the
summary way pointed out by s. 61. [Byles, J. Nobody doubts the power of the
[375] court: the only question is, whether this is a proper case for the exercise of it.]
COCKBURN, C. J. The impression of the court is decidedly adverse to the applica-
tion. We should be very reluctant to adopt a course which would preclude the
plaintiffs from taking the opinion of a court of error.
WILLES, J. The expense would not be materially increased by putting this
defence (if it is one) upon the record; for, the 74th section of the statute makes
certified copies of the proceedings evidence in all courts.
The rest of the court concurring,
Holl took nothing.
Cox V. MUNCEY. April 29th, 1859.
No action will lie for enticing away an apprentice, unless there be a valid
contract of apprenticeship.
The first count of the declaration stated, that, by deed dated the 18th of October,
1853, one Kimpton Muncey, being then an infant of the age of sixteen, or thereabouts,
by and with the consent of the defendant, his father, did put himself apprentice to
6 C. B. (Nq. 8.) 374.](ViewImageLocal?handle=hein.slavery/ssactsengr0273&div=1&collection=&method=preview&ext=.png&size=3)