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1827.

BAKER

ALLAN.

officio : it would, indeed, authorize the issuing of an alias or pluries writ, from the same office into the same county but it could not possibly authorize the issuing of a different writ, from a different office, into a different county. Where the affidavit is sworn before the signer of the writs, and a latitat is thereupon issued into one county, a subsequent writ may be issued into any other county, Middlesex excepted, upon the same affidavit; because, the signer of the writs is the proper officer for the issuing of writs into every county, except Middlesex. And this is the real distinction upon which the question turns; namely, that an affidavit sworn before a particular officer, will authorize the issuing of writs into every county into which that officer has authority to send process; but into no other : and it will be found to have been recognized and acted upon in every case which has been decided upon the subject. The cases cited on the other side, are, in reality, no authorities in favour of the present plaintiff. It is true, that in Dalton v. Barnes (a), the second process was in point of fact, a special capias, issued upon an affidavit sworn at the bill of Middlesex office. But that was not the reason assigned by the Court for holding the process irregular ; on the contrary, they declared, in the most general terms, that "an affidavit made for one specific object, could not be transferred to another." Here, that very thing is attempted to be done ; for the affidavit was made for the specific object of arresting the defendant under one process in the county of Middlesex, and it is transferred to the different object of arresting him under different process in the county of Surrey. Again, the Court there said, that "perjury could not be assigned on the office copy of the affidavit;” and so here, an indictment for perjury could not be supported upon the office copy of the affidavit, nor, indeed, even upon the original affidavit itself, unless a connexion could be shewn between the first and second process, which is impossible; and even

(a) 1 M. & S. 230.

1827.

if it could be shewn, the additional burthen of proof which would then rest upon the defendant, in his character of prosecutor, would be a difficulty to which the plaintiff has no right to expose him. In Boyd v. Durand (a), the second process issued under the authority of an office copy of an affidavit of debt, and was held regular; but that was upon the ground that both the first and second process were issued by the same officer, and, consequently, that the affidavit must have been sworn before the officer by whom the process in question was issued. Upon precisely the same principle, in Anderson v. Hayman (6), the second process was held irregular; for there the second process was not issued by the same officer who issued the first, and; consequently, there was no affidavit sworn before the second officer to authorize the writ which he issued : and the distinction already alluded to, as laid down in Dalton v Barnes (c), was there referred to and recognised. It must be admitted that, in Dorville v. Whoomwell (d), the Court intimated, that if the plaintiff had sued out a testatum, his second process would have been regular ; but still, upon the same principle, namely, that the same officer had authority to issue process for both counties; and they referred to the decision in Anderson v. Hayman(b), which they said was founded in good sense. In the latest case upon this subject, Evans v. Bidgood (e), the Court declared expressly that a testatum should have been issued, because the officer by whom the first process was issued, was also the officer authorized to issue the second process. Upon the whole, then, it seems clear that the words of the statute, the principle of the decided cases, and the good sense and reason of the thing, all warrant the defendant in contending that an affidavit sworn for the purpose of issuing process into one county, will not authorize the issuing of process into a different county, unless the officer before (a) 2 Taunt. 161.

BAKER

ALLAN.

(d) 3 Bing. 39, 10 J.B. Moore, (6) 8 Taunt. 242, 2 J. B. Moore, 192.

(e) 4 Bing. 63. (c) 1 M. & S. 230.

318.

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.

1827.

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

737419 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 that 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 a 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

1827.

MILBURN

Copp.

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 'employed 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 dis tinguishable 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 (b).

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, (b) And see Scrace, gent., one, 456; Skip v. Huey, and others, &c., v. Whittington, gent., one, 3. Atk. 91; Offey 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 Traité of Winchelsea, ib. 270 ; Collins v. du Contrat de Société no. 132.

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