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Pilkington Brothers, Liverpool." The referee reports that this letter was delivered in New York by Daniel Pilkington, for the purpose and with the intention that it should be exhibited to the persons who might buy the bills of exchange which might be drawn by Fleming & Alden, in New York, on Pilkington Brothers in Liverpool, as evidence of their authority to draw such bills: that the plaintiffs in each action did buy bills so drawn, but acceptance thereof was refused by Pilkington Brothers in Liverpool. On these facts the referee finds, as a conclusion of law, that the letter "operated as a promise and undertaking on the part of the defendants to and with every person who should, upon the faith and credit of the authority in said paper writing contained, purchase bills of exchange drawn by Fleming & Alden on the defendants, that said bills of exchange should be duly accepted by the said defendants."

It may be conceded, in favour of the defendants, that if in a case before us the same facts which are stated to have occurred at New York had been stated to have occurred in London, we should not have agreed in this conclusion of law, nor have found that there was any privity of contract between the defendants and the purchasers of the bills of exchange; but the law of New York, as stated by the referee, having been adopted by the New York Court, we must, for the present purpose, take the law of that place to be as represented; and this brings us to the point as to which law is to prevail on the question as to the liability of the defendants-it being contended, on their part, that as the thing contracted for, namely, the acceptance of the bills, was to be performed in this country, the law of England, as that of the place of performance, ought to prevail.

1862.

SCOTT

V.

PILKINGTON.

1862.

SCOTT

v.

PILKINGTON.

We are of a contrary opinion, it appearing to us that the question of the defendants' liability must be determined by the lex loci contractûs.

/ The question at issue has no relation to the manner of performing the contract, or to the consequences of non-performance. It relates entirely to the effect of the transaction at New York, and the document signed there by one of the defendants on behalf of the rest (his authority to bind the partnership not being called in question), in creating a liability in the defendants to the purchasers of the bills, which by the document the defendants were bound to accept in favour of Messrs. Fleming & Alden. Now, the transaction having taken place at New York, and the document in question having been executed there, and having been intended to operate there (the purpose of the defendants themselves having been, as stated by the referee, that the letter containing the contract with Messrs. Fleming & Alden should be exhibited by them to enable them to get rid of the bills), we are of opinion that the effect of the circumstances in question in creating a liability on the part of the defendants to the buyers of the bills must depend on the law of New York. The Court of New York having full jurisdiction over the subject-matter, have decided that the effect of the transaction in question is to establish a contract between the defendants and the plaintiffs, the purchasers of bills drawn by Fleming & Alden on the defendants, in conformity with the authority given by the letter of Daniel Pilkington, and not accepted by the defendants. For such we must take to be the effect of the Court having adopted the view of their officer in giving judgment in favour of the plaintiff. Upon what grounds the judgment of the American Court

proceeded whether on the ground that the delivery of the letter to Fleming & Alden for the purpose of its being exhibited to third parties to induce the latter to buy the bills gave Fleming & Alden authority to bind the defendants to the buyers-or whether on the ground that the exhibition of such a document constituted a direct and immediate contract with those who purchased bills on the faith of the defendants undertaking to accept—is a question on which it is unnecessary to speculate. It is enough that, being satisfied that the question of the defendants' liability must be determined by the lex loci of the contract, we have the decision of a local Court of competent jurisdiction as to what that law is. Our judgment must therefore be in favour of the plaintiffs. Judgment for the plaintiffs.

1862.

SCOTT

V.

PILKINGTON.

EVANS against JONES.

The last day for resealing a writ of summons, so as to save the Statute of Limitations, expired on Saturday the 28th December, within the Christmas holidays. A party who attended at the office on that day for the purpose found it shut, and the officer having refused to reseal the writ on the following Monday, the 30th, the Court refused to order him to do it afterwards, nunc pro tunc.

THE writ of summons in this action was issued in

July, 1854, and had been regularly continued until 29th June, 1861, so that the Statute of Limitations would run out on the 29th December, 1861, unless the writ were further continued. For this purpose a clerk of the plaintiff's attorney attended at the office on Saturday, the 28th December, within the Christmas holidays, and found it closed. On Monday, the 30th,

Tuesday, January 28th.

Resealing writ
of summons.
Statute of
Limitations.
Holidays.

1862. EVANS

V.

JONES,

he again attended at the office and found it open, but the officer refused to reseal the writ unless by order of a Judge. Application was accordingly made to Mellor J. for an order directing the officer to reseal the writ nunc pro tunc, who refused to interfere, and referred the matter to the Court.

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J. Thompson moved for a rule accordingly. The
Common Law Procedure Act, 1852 (15 & 16 Vict.
c. 76. s. 11.), allows the plaintiff six months to renew
his writ, and although he applied within that time
the officer refused to reseal it. [Crompton J. The
plaintiff, not the officer, was the party in default. As
the plaintiff could not have his writ resealed on the
last day of the six months, in consequence of its falling
on a Sunday, he ought to have applied at the office the
day before, and that day was a dies non. Mellor J.
When this matter was before me, the case of Nazer v.
Wade (a) was referred to as an authority against you.]
That case is distinguishable, for there the time had run
out before the application was made. Under the old
practice, writs were sealed on holidays on payment of
an extra fee; Martin v. Bold (b). [Crompton J. If
you had induced the officer to reseal the writ on the
28th December, it would have been well enough.] The
statute should have an equitable construction, as appears
by Anonymous (c), and Anonymous (d). [Crompton J.
I do not know what you mean by equitable construction.
If the not resealing this writ had been the fault of one
of our officers, we should order him to do it nunc pro

(a) 1 B. & S. 728; 31 L. J. Q. B. 5.
(b) 7 Taunt. 182.

(c) 24 L. J. Q. B. 23; 18 Jur. 1104. (d) 24 L. J. C. P 1; S. C. nom. Black v. Green, 15 C. B. 262.

tunc.

But here the application was made at a time. when the officer was not bound to be at his office; and the case is the same as if it had been made on the last day allowed by law at an hour when the office was closed.]

1862.

EVANS

V.

JONES.

Rule refused.

CHAUVIN against ALEXANDER.

On the final hearing, by the Insolvent Debtors Court, of the case of a party who had petitioned it for relief, the case was adjourned sine die, and protection refused. On quitting the Court, the insolvent was arrested on a ca. sa. held, that he was privileged from arrest.

THE

HE defendant had petitioned the Insolvent Debtors Court for relief, and obtained protection in the usual way; but when his case came on for final hearing the Commissioner adjourned it sine die, and refused all further protection. On quitting the Court the defendant was arrested on a ca. sa. An application was then made to a Judge at chambers to discharge him, on the ground that, being in attendance on a tribunal at the time when he was taken into custody, he was privileged from arrest. Wightman J. having refused to interfere,

J. O. Griffits obtained a rule accordingly, citing 1 Chitt. Archb. Pr. 719-20, 9th ed.

J. Brown shewed cause. This was not a proceeding in bankruptcy, where the defendant would be privileged, but was a proceeding in the Insolvent Debtors Court, which is distinguishable in this, that the former is a hostile proceeding taken against the party by his

Tuesday, January 28th.

Privilege from arrest. Insolvent

Debtors Court.

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