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1827.

whom it is sworn has authority to issue process into both counties : and if that be so, it follows that the process, under which this defendant was arrested, is irregular.

BAKER

v. ALLAN.

Cur. adv. vult.

Judgment was afterwards delivered by,

Lord TENTERDEN, C. J.-This case involves a question of great general importance, and we were anxious to give it full consideration, before we decided upon it. [His Lordship then stated the facts contained in the affidavits, and the nature of the question raised upon them, and thus proceeded]. The practice, in uniformity with which the present plaintiff has acted, has obtained for a long period of years; and unless we see clearly either that it violates some established legal principle, or that it defeats the intent and object of the act of parliament, we think it very desirable to abstain from disturbing that practice. We have carefully considered the subject, and we are of opinion, first, that the writ of latitat, issued in this case, may be considered as a continuance of the bill of Middlesex (a); and, secondly, that an affidavit sworn before the officer who had authority to issue the first process, and of which the second process was a continuance, substantially satisfied the requisites of the statute. The defendant's rule, therefore, must be discharged; but as the question was one of nicety, and well worthy of discussion, we shall discharge the rule without costs.

Rule discharged, without costs.

(a) See Plummer v. Woodburne, 7 D. & R. 25, 4 B. & C. 625. In that case, the last process, which

alone contained the ac etiam clause, was a latitat.

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1827.

Milburn, Gent., one, &c. v. CODD and another.

7419 . A joint

ASSUMPSIT for work and labour as an attorney. Plea, stock company, in which non-assumpsit. At the trial before Lord Tenterden, C. J., A., B., and at the sittings in Middlesex, in last Trinity term (a), it C., are shareholders, is dis- appeared that the plaintiff and defendants had been memsolved ; A. bers of “ The London Carrier Company,” which was disand B. being sued by a cre- solved on the 3d May, 1826. The Company being considitor of the

derably in debt at the time of its dissolution, defendants, concern, employ C., who

as two of the proprietors, and two of the committee of is an attorney, to defend

management, were sued by several of the creditors of the them. C. Company. The defendants employed the plaintiff to cannot sue A. and B. for his defend these actions, and a bill of costs,amounting to 481., bill of costs.

was incurred; to recover which the present action was brought. For the defendants it was objected, that the plaintiff and the defendants were partners in the transaction out of which this claim arose, and at an action of assumpsit (6) could not be maintained. The learned Judge was of opinion that the plaintiff, if employed by the defendants, had a right to call upon them for the

(a) Counsel for the plaintiff, extraordinary power is wanted, Denman, C. S., and Andrews; for and where the matter would be the defendants, J. Williams and bronght to a much cheaper and Goulburn,

more expeditious termination in a (6) The only action given by the court of Law. Where upon accommon law to compel the settle- counts between partners, a balance ment of an open account between has been struck with a promise partners, is the action of account. express (Forster v. Allanson, 2 A concurrent remedy lies in a T. R. 479) or implied (Rackstraw court of Equity, by filing a bill for v. Imber, Holt, N. P. C. 368), to an account; and as a court of pay the amount, an action of debt, Equity has more extensive juris- or indebitatus assumpsit upon an diction to compel a discovery, and account stated, may be supported. the production of evidence, than And such promise is not discan be exercised by auditors ap- charged by subsequent partnerpointed in a court law, in ship transactions upon which the common law action of account balance, if taken, would be against the proceeding by bill is become the promisee ; Preston v. Strutton, so much a matter of course, that- 1 Anstr. 50. it is resorted to in cases where no

a

1827.

MILBURN

CODD.

amount of his bill of costs incurred about their defence, and they might call upon the other members of the Company for contribution. His lordship told the jury, that if they thought defendants had 'omployed plaintiff, they would find a verdict for that portion of the bill of costs which related to the defence of the actions. A verdict was accordingly returned for the plaintiff, damages 341. 16s. 2d.

J. Williams having, in the course of the same term, obtained a rule nisi, for a new trial,

Denman, C. S., now shewed cause. This case is distinguishable from Holmes v. Higgins (a); because here there was a specific engagement between the parties. The charges in the plaintiff's bill do not commence until after the Company was at an end ; the defendants, therefore, employed the plaintiff in their individual capacity, and not as members of the Company (6).

J. Williams, (with whom was Goulburn), contrà, was stopped by the Court.

Lord TENTERDEN, C. J.—The actions which the plaintiff defended, were actions brought against the defendants as members of a partnership of which the plaintiff was also a member. When an action was commenced, it was the duty of all the partners in the late company, either to pay the money or to resist the demand ; and in the case of resistance, the expense ought to be paid by all, the plaintiff among the rest(c). The plaintiff cannot say that there was

(a) 2 D. & R. 196; 1 B. & C. Prosser, 3 D. & R. 112, 1 B. & C. 74.

682; Layer v. Nelson, 1 Vernon, (6) And see Scrace, gent., one, 456; Skip v. Huey, and others, &c., v. Whittington, gent., one, 3. Atk. 91; Offley and Johnson's &c., 3 D. & R. 135; 2 B. & C. case, 2 Leon, 166; Gifford, er 11.

parte, 6 Vesey, jun. 805; Walton (c) And see Cowell v. Edwards, v. Hanbury, 2 Vern. 592; Bac. Abr. 2 B. & P. 268; Deering v. Earl Obligation D. 5; Pothier Traite of Winchelsea, ib. 270; Collins v. du Contrat de Société no. 132.

1827.

no defence; he and all the others derived benefit from their defending, and therefore he cannot maintain this action.

MILBURN

CODD.

BAYLEY, J.—The original actions were brought upon demands for which these parties were jointly liable, the amount, ought, therefore, to have been paid out of the funds of the Company; or if it was right to resist these claims, the expense of defending ought to be paid out of the funds of the Company. The plaintiff, who was the attorney conducting the defence, cannot say that the actions were improperly defended (a). The plaintiff does not cease to be a partner until the concern is at an end. If the plaintiff recovered in this action, the defendants would be entitled to call upon him for contribution.

LITTLEDALE, J.-This action cannot be supported. The creditors were entitled to be paid by the whole Company. If the actions could be defended upon reasonable grounds, they ought to have been defended, but then the plaintiff cannot sue those two persons, because all ought to contribute, and he defended for his own benefit. If the defence was frivolous and nugatory, the plaintiff being employed, must have known that as well or better than his clients. As against him it must be taken to have been a fair defence. Taking it either way, he has no right of action against those to whose expenses he was bound to contribute (b).

Rule absolute.

(a) See the next case.

(6) Suprà, 238, note (c).

1827.

cannot recover

amount of a

ALLISON, Gent., one, &c., v. RAYNER. ASSUMPSIT for work and labour as an attorney. The

An attorney defendant pleaded non assumpsit, and paid 361. into from the asCourt. At the trial, before Hullock, B., at the last Spring signee of an assizes, for the county of York (a), it appeared that the debtor, the defendant had in 1821, been appointed assignee of one bill of costs Jackson, an insolvent. In that capacity he had brought incurred in

proceedings two actions against Horsfall and others, and Clarke.

requiring the The actions being referred, the arbitrator directed a nonsuit consent of a

meeting of to be entered in each. In August, 1826, the now plain- creditors, tiff, who had been employed to prosecute those actions, ing that such delivered his bill of costs, containing, first, items amount- consent was ing to 111. ls. 5d. for general business relating to the obtained, or insolvency; then a full statement of the charges in the was informed former of the two actions, amounting to 241. 15s.; and ceeding at his then proceeding thus :

own risk.

that the client

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The like costs in this action as in the one

against Horsfall and others, with award, &c., although the proceedings were consi

derably longer, say To extra costs of bail, writ, warrant, arrest,

and exception to bail and justification, in this action, beyond the above

24 15 0

2 12 6

£63 3 11

Credit was given for 31. 7s. 4d, received from a debtor to the estate, which left a balance of 591. 16s. 7d.

F. Polluck, and Patteson.

(a) Counsel for the plaintiff, D. F. Jones ; for the defendant,

VOL. 1.

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