1803.

HESS

however, that nothing short of an actual conveyance by the assignees can sustain that argument, and that a mere release will not be sufficient; and it was therefore insisted that the deed amounted to a conveyance. But I have no hesitation in saying, that the deed STEVENSON alluded to was neither intended to convey, nor did it operate in law as a conveyance. By that deed the two persons who were the assignees of Koops, together with his several other creditors, parties thereto, in consideration of his having agreed to pay them fifteen shillings in the pound, and to secure the debts of the foreign creditors after the same rate, did remise, release, and quit claim to him, all actions, suits, claims, and demands whatsoever. But it is to be observed that the persons who were assignees did not convey as such. Indeed, if they acted as assignees, why was it necessary that the other creditors should join? and they do not pretend to bind the other creditors, who were not parties to the deed. This is the deed which is said to convey to Koops as a purchaser all the interest of the assignees, and to make him a new man. But the words are not sufficient for that purpose. It could not have been the intention of the parties. The assignees do not affect to convey for any persons not parties to the deed. And the instalments have not been paid according to the agreement. We are therefore clearly of opinion, that it is impossible to construe this deed to be such a conveyance as has been contended for on the part of the Defendant. With respect to the supposed power of the assignees to make such a compromise with the bankrupt as that stated in the case, and the attempt to shew that it amounts to a sale of the property to him; it was not competent to assignees to make such compromise unless the other creditors had consented; nor could the transaction be deemed a sale under the usual powers. Next it is contended, that the nature of the property in this patent was such that it did not pass under the assignment; and several cases were cited in support of this proposition. It is said, that although by the assignment every right and interest, and every right of action, as well as right of possession and possibility of interest, is taken out of the bankrupt and vested in the assignees, yet that the fruits of a man's own invention do not pass. It is true, that the schemes which a man may have in his own head before he obtains his certificate, or the fruits which he may make of such schemes do not pass, nor could the assignees require him

to

1803.

HESSE

to assign them over, provided he does not carry his schemes into effect until after he has obtained his certificate. But if he avail himself of his knowledge and skill, and thereby acquire a beneSTEVENSON. ficial interest, which may be the subject of assignment, I cannot frame to myself an argument why that interest should not pass in the same manner as any other property acquired by his personal industry. Can there be any doubt, that if a bankrupt acquire a large sum of money, and lay it out in land, that the assignees may claim it? They cannot indeed take the profits of his daily labour. He must live. But if he accumulate any large sum, it cannot be denied that the assignees are at liberty to demand it; though, until they do so, it does not lie in the mouth of strangers to defeat an action at his suit in respect of such property by setting up his bankruptcy. We are therefore clearly of opinion, that the interest in the letters patent was an interest of such a nature as to be the subject of assignment by the commissioners. Lastly, it is contended, that the act of parliament stated in the case, vested a legal interest in Koops, for that he must be taken against all the world to have that interest which the act of parliament recites to be vested in him, that act being a public act. But though the act be public it is of a private nature; the only object of the proviso for making it a public act is, that it may be judicially taken notice of instead of being specially pleaded, and to save the expence of proving an attested copy. But it never has been held, that an act of a private nature derives any additional weight or authority from such a proviso; it only affects Koops and those claiming under him, and authorises him to do certain acts, which by the letters patent he could not have done. It recites the letters patent containing a clause which prevents him from assigning to more than five persons, and then enables him to assign to any number of persons not exceeding sixty. It is not possible then to consider this act as giving any title to Koops which he had not at the time when it passed. Such has been the construction which has always been put upon acts of parliament of this nature. We are therefore of opinion, that no aid is to be derived to the Defendant from that act of parliament.

Per Curiam,

Judgment for the Plaintiff.

1803.

COLLINS V. JACOBS.

THE
HE Defendant having obtained a rule nisi for changing the
venue from London to Kent, in an action for goods sold and
delivered, upon the usual affidavit, that the cause of action arose
in the latter county, and not elsewhere; Lens Serjt. on the part
of the Plaintiff produced an affidavit, stating, that the goods
were sold and delivered at Rotherhithe, in the county of Surry;
and this he contended being an answer to the affidavit on which
the venue had been changed, inasmuch as it falsified the mate-
rial allegation of the cause of action having arisen in the county
of Kent and not elsewhere, superseded the necessity of an under-
taking to give material evidence in London. He cited the case
of Calliand v. Champion, 7 T. R. 205., where the Defendant, in
an action upon a life insurance, having changed the venue from
Middlesex to London, the Plaintiff was allowed to bring it back,
on producing an affidavit that the person whose life was insured
died in Scotland. He observed, that the practice of this Court
had been understood to differ from the case of Calliand v. Cham-
pion, but insisted, that as a Plaintiff in a transitory action has a
right to try his cause in any county in which he thinks proper,
unless the Defendant will remove the venue into the county
where the cause of action really arose, the Plaintiff ought not
to be deprived of that benefit by an affidavit which appears to
be false; and he added, that it was impossible for the Plaintiff,
in this case, to retain the venue on the usual undertaking, be-
cause he admitted that Surry was the county where the material
evidence was to be found, the goods having been sold and deli-
vered there.

Bayley Serjt. contrà, insisted, that by the practice of this Court an undertaking was necessary, and relied on the case of French v. Coppinger, 1 H. Bl. 216., where the Defendant having obtained a rule for changing the venue from London to Cornwall on the usual affidavit, the Plaintiff shewed cause, and produced an affidavit, stating that the action was for money lent in London, but the Court refused to bring back the venue, without an undertaking to give material evidence in London.

Onslow Serjt. amicus curia, mentioned the case of Roland v. Knapp, Hill. 41 Geo. 3. in this court, where the Defendant, in

* Vide Price v. Woodburne, 6 East, 433. Henshaw v. Rutley, 1 N. R. 110. Hope v. Bennet, 2 N. R. 397. Hunt v. Bridgeford, 1 Taunt. 259. Savory v. Spooner, 6 Taunt. 566. Emery v. Emery, 6 Price, 336.

VOL. III.

PP

an

Nov. 28th.

An application to change the venue from A.

to B., in an action for goods sold and delivered, upon an affidavit that the cause of action arose at B., and not elsewhere, may answered by an be successfully affidavit that the goods were sold at C.

1803.

COLLINS

v.

Јасова.

an action for words, having obtained a rule nisi for changing the venue from London to Berkshire on the usual affidavit, the Plaintiff produced an affidavit, stating that the action was commenced for words spoken in Oxfordshire as well as Berkshire, and the Court, after some consideration, held, that notwithstanding the practice of the King's Bench, the practice of this court requir ed that the Plaintiff should undertake to give material evidence in the county where he had laid the venue.

Cur, adv. vult.

Lord ALVANLEY Ch. J. now said; The Defendant in this case having moved to change the venue, on the usual affidavit that the whole cause of action arose in Kent, and not elsewhere, the Plaintiff does not oppose this application in the usual way, by undertaking to give material evidence in the county where the action was brought, but meets the affidavit of the Defend ant by an affidavit that the whole cause of action, so far from arising in Kent, arose for goods sold and delivered in Surry. The question is whether this affidavit be a sufficient answer to the Defendant's application? It has been decided by the Court of King's Bench, that if a Defendant apply to change the venue on the usual affidavit, it is a sufficient answer to such applica tion, for the Plaintiff to shew that the cause of action arose in more counties than one, though he will not undertake to give material evidence in the county where the action is laid. The case of Calliand v. Champion is directly to this effect. It was said, however, that whatever the practice of the King's Bench might be, yet that the practice of this court is otherwise: and two cases have been mentioned, namely, French v. Coppinger and Roland v. Knapp. The former of these cases, however, proves nothing more than this; that when the Plaintiff resists the Defendant's application to change the venue, by insisting that the cause of action arose in the county where he has laid it, the Court will not permit him to do so merely by affidavit, but will require from him an undertaking to give material eridence in that county. The other case, though it certainly has more application to the point in dispute, only establishes that applications to change the venue are entirely subject to the dis cretion of the Court, who will make such rules as may found best adapted to the attainment of justice. On looking into the papers in that case, I perceive that the application was made in an issuable term, and that although the Court did not

be

allow

E

IN THE FORTY-FOURTH YEAR OF GEORGE III.

allow the venue to remain where it was originally laid, yet that
they did not permit the Defendant to carry it into Berkshire
according to the terms of his application; but by a sort of com-
promise, directed that it should be carried into Oxfordshire, it
appearing that the words were spoken at two places very near
to each other, viz. Abingdon and Oxford. In that case, there-
fore, the Plaintiff was enabled to obtain his judgment as soon as
if the cause had been tried in London. If any inconvenience
would be occasioned in this case by the trial of the cause in
London, we might perhaps be induced to pursue the same course
which was adopted in Roland v. Knapp; but here the whole
cause of action having arisen at Rotherhithe, the convenience of
both parties requires that the cause should be tried in London.
Let us consider the ground of these applications to the Court.
The statute of the 4 H. 4. c. 18. directs, that all attornies shall
swear to make no suit in a foreign county; and great jealousy
prevailed at common law respecting the trial of causes except
by a jury de vicineto. But all that is now at an end with re-
spect to transitory actions, and the Courts hold themselves at
liberty to permit a Plaintiff to bring his action wherever he
thinks proper, under certain restraints. If it appear that the
whole cause of action arose in one county, the Defendant is al-
lowed of course to remove the venue into that county; and if the
cause of action arose in more counties than one, though the De-
fendant has no right to remove the venue of course into either
of those counties, yet if justice can be better obtained by a trial
in one of those counties than in the county where the Plaintiff
has brought his action, the Court may permit the venue to be
removed into either of those counties. If the practice of this
court had been otherwise, I should certainly have followed it in
the decision of this case, but I should have inclined for the fu
ture, to render the practice of both the courts uniform. At pre-
sent, however, no discordancy appears and as it has been sworn
that the whole cause of action did not arise in the county of
Kent, we think that sufficient cause has been shewn why the
venue should remain where it has been laid.

Per Curiam,

Rule discharged.

1603.

581

COLLINS

บ.

JACOBS.

PP2