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![handle is hein.slavery/ssactsengr1014 and id is 1 raw text is: ALDERSON V. TEMPLE
1st. No new trial ought to be had. The direction of my Lord Chief Justice was
right. For, here the deed itself liquidated the certain sum: it was ascertained and
fixed, between the parties themselves; and was therefore the true and proper quantum
of the damages.
2d. As to the motion in arrest of judgment I should not think it a proper motion,
if this was a covenant to marry her. But this is only, not to marry another.
The words are plain and manifest: and the intention seems to have been agreeable
to them. The deed was executed in 1757: and the defendant did not marry till
1767. The plaintiff lay by, and never made a requisition to him to marry her:
but when he married another, she brought her action of covenant.
It seems to me, to have been understood between the parties themselves, and even
by the plaintiff herself, in the same sense as we understand it now.
[2234] If so, 'tis a restraint upon matrimony, and is illegal, and stronger than the
case of Woodhouse v. Shepley.
Lord Mansfield.-Let the rule for a new trial be discharged: but the judgment
must be arrested.
This rule (mentioned ante, p. 2226,) was drawn up, for the plaintiff to sbew cause
why the verdict should not be set aside, and a new trial had between the parties: and
in case the Court, upon hearing counsel on both sides, should be of opinion to dis-
charge the rule, that then the defendant should be at liberty to move in arrest of
judgment.
Memorandum.-This judgment was affirmed in the Exchequer-Chamber, on 26th
May 1770.
The end of Easter term, 1768, 8 G. 3.
[2235] TRINITY TERM, 8 GEO. 3, B. R. 1768.
ALDERSON AND OTHERS, Assignees, versus TEMPLE. (S. C. 1 Bl. 660.) Friday,
10th June 1768. An insolvent cannot prefer a particular creditor.
(Referred to, Marks v. Feldman, 1870, L. R. 5 Q. B. 283; Exparte Craven, 1870,
L. R. 10 Eq. 655; L. R. 6 Ch. 70.]
This was an action of trover brought by the plaintiffs as assignees of Charles La
Roche and Robert Willing, bankrupts, against the defendant.
The first count of the declaration sets forth, that the plaintiffs, as assignees, on
7th Nov. 1766, were possessed of a promissory note drawn by Bryer and Everard for
£600 payable to La Roche and Willing or order, before they became bankrupts:
which note was accidentally lost, and came to the hands of the defendant; and he
converted it to his own use. The second count was for another note, made by one
Rachael Phipps, to one Richard Blackburn for £439, and indorsed to the said
bankrupts in like manner.
To which declaration, the defendant pleaded not guilty: and thereupon issue
was joined.
The cause came on to be tried at Guildhall, at the sitting after last Hilary term,
before Lord Mansfield; when the jury found for the plaintiffs upon the first count,
subject to the opinion of the Court upon the following case; and for the defendant,
upon the second count.
Case. The bankrupts La Roche and Willing, on Friday 7th Nov. 1776, indorsed
the note in question to the defendant Temple, to whom they were indebted to a large
amount; and sent it in a letter directed to him at Trowbridge; which letter was
carried to the post-house that morning; the bankrupts thinking that the post-day for
Trowbridge. The letter by the course of the post [2236] (which went out on the
Saturday night) was received by the defendant some time on Monday the 10th; and
could not be so before.
The note in question was-London, 10th Octob. 1766. Two months after date,
we promise to pay Messieurs La Roche and Willing, or order six hundred pounds,
for value received. BRYER AND EVERARD.
The bankrupts had given Bryer and Everard two notes for £300 each; which had
4 BURR. 2234.](ViewImageLocal?handle=hein.slavery/ssactsengr1014&div=1&collection=&method=preview&ext=.png&size=3)