1819. THE KING against SHERIFF OF LONDON. sheriff, but having forfeited it, he wishes to relieve himself from the consequences. But here no bond has been given to the sheriff, and therefore I am anxious to know why the defendant makes this application to the Court. I cannot but consider this application, though made in the name of the defendant, as an application for the sheriff or the sheriff's officer. BAYLEY J. If the defendant will not have to pay the debt ultimately, why should he apply to set aside the attachment? He might have been liable to the sheriff, but the plaintiff could never recover the debt from the defendant, no bail bond ever having been given. HOLROYD J. If there is no bail bond, what right has the defendant to come and claim relief against the sheriff, when the defendant himself cannot be injured? for if the sheriff has not done his duty, he is liable to an action for an escape. Whatever may be the consequences to him for having neglected his duty, he cannot recover against the defendant. Then what right has the defendant to come here? BEST J. concurred in thinking that the defendant had no right to make this application. Rule discharged with Costs. 1819. SNELLGROVE and another, Assignees of WHITE a Friday, A SSUMPSIT on a bill of exchange drawn the 16th of January 1818, payable four months after date, for £100. to the order of Bartholomew White the bankrupt, and accepted by the defendant. The declaration alleged the promises to be made to the assignees of the bankrupt. At the trial before Abbott, C. J. at the sittings after last Term at Guildhall, it appeared in evidence that the commission issued against the bankrupt was dated on the 7th of March 1818; that the bill of exchange in question was due on the 19th of May following; that there were three assignees appointed under the commission, two only of which joined in the present action. Under these circumstances, it was objected on the part of the defendant, that all the assignees should have joined in the action, inasmuch as the action was founded entirely upon promises to all. The case of Bloxam v. Hubbard (a), was cited as an express authority; and the Chief Justice acquiescing in the objection, the plaintiffs were nonsuited. F. Pollock now moved for a rule to shew cause why the nonsuit should not be set aside, and a new (a) 5 East. Rep. 407. In that case it was held, that an order of the Lord Chancellor made under the statute 5 Geo. 2. c. 30. upon the petition of the creditors for removing one of several assignees of a bankrupt's estate not followed up by any reassignment or release of such assignee to the remaining assignees, nor by any new assignment of the Commissioners under the Lord Chancellor's order, did not operate to divest the legal estate out of such removed assignee, and consequently he ought to join in an action of trover brought by the assignees for a ship belonging to the bankrupt's estate. But it was held, that in an action of trover advantage could only be taken of the nonjoinder by a plea in abatement, and that the other assignees could recover their proportional parts. Jan. 29th. In an action of assumpsit at the suit of assignees, it is necessary that they should all join; and brought at the suit of two assignees, when it appears that the promises were made to three, the plaintiffs will if the action be be nonsuited. 1819. SNELLGROVE against HUNT. trial granted. The question in this case is, whether two assignees out of three may not lawfully sue, inasmuch as they sue in a representative character. Undoubtedly it must be admitted that the declaration in this case is founded entirely upon promises made to the assignees of the bankrupt generally. But this case may not be considered as distinguishable from the case of executors, who may sue without joining all the executors named in the will. This objection however, it must be confessed, had some strong authorities in support of it, and after looking more accurately at the pleadings, it is to be feared that the declaration cannot be supported. It cannot be doubted that there is a distinction between tort and assumpsit. In the former species of action it is competent for one of several persons jointly interested to bring the action, and the defendant can only take advantage of the objection by a plea in abatement, but in the latter he may avail himself of it on non assumpsit. In the case of Bloxam v. Hubbard (a), which was an action of trover, in which only three out of four assignees joined, and a similar objection being taken, Lord Ellenborough C. J. said, "Assuming it to be well founded, and we think it so, it has only the effect of precluding the plaintiffs, who are three out of the four assignees, in whom the property of the ship originally was vested, from recovering more than their three-fourth parts in value of the property in question. For, it is now too well settled, to be any longer disputed in a court of law, that the defendant can only avail himself of an objection of this sort, viz. that all the several part owners in a chattel have not joined in an action of trespass or of tort brought in respect to it by plea in abatement." Upon the same principle this case does not come within the ordinary (a) 5 East. Rep. 407. rule which applies where executors declare without being all joined in the action. The Chief Justice at the trial certainly asked whether the averment in this declaration could be established by the evidence upon any decided authority. Expecting that it might be brought to correspond with the principle of the case of executors, it was contended on that occasion, that the objection taken to the declaration was not available; but upon consideration it must be acknowledged that it does not fall within that principle, because the implied promises would be to all the assignees, whereas the promises averred in the declaration are only to two of them. Probably, however, the Court would think that what is said in a Note of Serjeant Williams, in his edition of Saunders's Reports (a), is not inapplicable to the present case. What he says is this: "With respect to contracts not under seal, whether in writing or by parol, a distinction has been taken between actions of assumpsit and actions of tort; in the former case, if one only of several persons who ought to join bring the action, the defendant may take advantage of it on non assumpsit, but in the latter he must plead it in abatement. And this distinction is universally adopted. However, it may not be improper to observe as to assumpsit by one only, that at the time when most of the cases upon this subject were decided, the same rule extended as well to defendants as to plaintiffs. The rule in both cases was founded upon the same reason that the contract proved was not the same with that in the declaration. But as soon as it was decided in the case of Rice v. Shute (b), and the other cases which followed it, that leaving out one of the joint contractors did not vary the contract, one would have thought that the same principle would be applied to the case of persons with whom the con (a) 1 Saund. Rep. by Serj. Williams, 4th ed. 291 g. note 2. (b) 5 Barr, 2611. 2 Bla. R. 947. 1819. SNELLGROVE against HUNT. 1819. SNELLGROVE against HUNT. tract was made. If the contract be still the same, notwithstanding one of the persons who ought to be made co-defendant is omitted, upon what principle is it that the contract is not the same, if one of the persons who ought to be co-plaintiff be omitted? Perhaps it may be objected, that by this means the plaintiff and the defendant are not upon equal terms; that in an action against one only, he necessarily knows all the persons liable; but in an action by one only, the defendant may often not know nor be able to know, what persons ought to join. But in answer to this, it should always be remembered that the rule is founded upon the supposed variance between the contract proved and the contract laid, and not upon any inconvenience or convenience to the parties. As to the knowing of the persons, the cases above referred to, respecting defendants, have decided that this circumstance is immaterial; and as to the convenience or inconvenience of the thing, it should seem more convenient that the parties should, after issue joined, proceed upon the merits, than that the defendant should be allowed to nonsuit the plaintiff upon a mere matter of form. However the settled distinction is, as I have before mentioned, and it must be left to the operation of time, and the same good sense as at last prevailed in RICE v. SHUTE, respecting defendants, to do away a distinction which seems to me to have no principle for its foundation." It is to be feared that that period has not yet arrived, and it is probable that this learned person did not know how much he had to contend with. ABBOTT C. J. I have a great respect for that learned writer, and no man entertains more respect for his opinions than I do, but I think that there is very great reason for the distinction which he seems to contend against. The plaintiff knows or ought to know who are his own partners in a transaction, but he may not be able to ascertain how many persons are liable |