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directed by rule II, Hilary, 2 W. 4, to be made upon the copy of any process served for the payment of a debt.

PLATT had obtained a rule, calling upon the plaintiff to show cause why the defendant should not be discharged out of custody on filing common bail. A bill had been filed against the defendant at the plaintiff's suit for debt, and a copy served upon the turnkey, but there was no indorsement upon the copy so served, of *the amount of the debt, and the attorney's claim for costs; [*368 and it was contended that, by rule II. Hil. 2 W. 4, (a), such indorsement was necessary, and the want of it made the proceeding irregular. Chandless shewed cause, and contended that the rule, being applicable only to process or copy of process, did not extend to the copy of a bill filed againt a prisoner.

Platt contrà. A bill is the only mode of commencing a suit against a prisoner, and the policy of the rule applies to it, as well as to what is more properly termed process. [PATTESON, J. We have held that a bill against an attorney is not process within this rule. (b)] There the proceeding does not charge the person; there is not, therefore, the same reason for such a rule. PER CURIAM. There is no distinction. No process is served in either case. Rule discharged.

*GREEN and Others v. MITTON, Gent. Nov. 26.

[*369

Plaintiff commenced his action in Hilary term, 1831, and declared in trover. The parties went to issue, and plaintiff was put under a peremptory undertaking to try. In Michaelmas term, 1832, having been advised that the action was misconceived, he moved for leave to substitute a count in detinue for that in trover, and add one in debt; and it was sworn that no new ground of action was contemplated. Leave refused.

CAMPBELL, Solicitor-General, had obtained a rule to shew cause why the plaintiffs should not be at liberty to amend the bill, issue, and record in this case by substituting a count in detinue for a count in trover, and by adding a count in debt. It appeared that the action was brought for the recovery of certain deeds on which the plaintiffs had advanced money, and which had come into the defendant's hands, and were (as was said) improperly detained by him. On behalf of the plaintiffs it was stated that the bill was drawn in trover by the advice of a special pleader, but the plaintiffs' attorney had lately been informed that it ought to be in detinue; that the object of the action, in whichever form brought, was the same, namely, to recover the above-mentioned deeds: and that the motion was not made with any view but the better attainment of that object. On the other hand it was stated, that the action was commenced as long ago as Hilary term, 1831; that the plaintiffs were then fully apprised of all the facts; and that they had been put under a peremptory undertaking to try after Easter term last. There were conflicting affidavits on the merits.

Sir James Scarlett, now shewed cause. There is no pretence for changing the form of action as desired here, when the parties are at issue. Where a plaintiff has applied merely to amend a declaration by changing the form from case

(a) "That upon every bailable writ and warrant, and upon the copy of any process served for the payment of any debt, the amount of the debt shall be stated, and the amount of what the plaintiff's attorney claims for the cost of such writ or process, arrest, or copy and service and attendance to receive debt and costs, and that upon payment thereof within four days, to the plaintiff or his attorney, further proceedings will be stayed." 3 B. & Ad. 390.

(b) In Lewellin v. Norton, moved in the bail court, Easter term, 1832, and referred to all the Judges of this Court.

*370] to debt, the application has been rejected, Levett v. Kibblewhite, 6 Taunt. 483. [PATTESON, J. The Court of Common Pleas has allowed a declaration in assumpsit to be changed to debt, after issue joined and a peremptory undertaking, Billing v. Flight, 6 Taunt. 419.] That might be on a statement of very peculiar merits: as where the amendment would save an action from being barred by the statute of limitations. (a) Here no such merits are stated. If such a motion were acceded to, no limits could be assigned to the practice.

The Solicitor-General contrà. Justice will be done by the rule, and the defendant cannot be prejudiced. The rule will be drawn so as to provide for the costs to which he may have been subjected by the action being misconceived; and on the merits his situation will not be altered.

DENMAN, C. J. It is a great act of indulgence to grant such an application as this, and the Court fear that, by making the rule absolute, they would establish a very inconvenient precedent. Where the parties agree, it may be otherwise; but the amendment being objected to, we cannot grant it. The case in Taunton, (Billing v. Flight, 6 Taunt. 419,) where assumpsit was changed to debt, was under very peculiar circumstances. The rule must be discharged. PARKE, TAUNTON, and PATTESON, Js., concurred. Rule discharged.

*371]

WALKER v. SAMUEL GARDNER, JOHN GARDNER, and
JAMES HARRIS. Nov. 26.

A debtor, being arrested, offered a warrant of attorney. The plaintiff's attorney, who had also advised the defendant in previous stages of the business, came at his request to the place where he was in custody, and proposed another attorney whom he brought with him, to read over the warrant of attorney to the defendant, and attest it on his behalf. The defendant acquiesced, but the attorney so introduced was not known to, or sent for by him: Held, that this was not a compliance with the rule, Easter 4 G. 2, (and see Reg. Hil. 2 W. 4, I. 72,) which declares that no warrant of attorney executed by a person in custody of the sheriff, &c., shall be valid, unless there be present an attorney on his behalf, to be expressly named by him, and attending at his request, to witness it; and the warrant of attorney and proceedings thereon, were set aside for irregularity.

In the last vacation Sir James Allan Park, J. made an order at chambers that the judgment signed and execution issued on a warrant of attorney in this cause should be set aside for irregularity, and the warrant of attorney delivered up to be cancelled. During this term Sir James Scarlett obtained a rule to shew cause why that order should not be discharged, in support of which application he cited Osborne v. Davis, 4 Taunt. 797.

It appeared from the affidavits for and against the present rule (which were in many respects contradictory), that Samuel Gardner had employed Smallridge, an attorney at Gloucester, to borrow a sum of money for him on mortgage, from one Walker, a client of Smallridge, and that Samuel Gardner, at Smallridge's suggestion, induced John Gardner to join him in a promissory note for 307., as a further security for the sum advanced. They were afterwards (July 1832) arrested for the amount of the note, and lodged in custody at a public house at Gloucester. At four o'clock on that day, after being in confinement about three hours, they sent for Smallridge, to confer with him as to an arrangement for their release, and they proposed to him to pay the debt and costs by instalments of 17. per month, but he required that it should be 51. 5s. for the first two months, and *that they should procure some person to join them in a warrant of attorney to secure the payments. They named the defendant

*372]

(2) Executors of the Duke of Marlborough v. Widmore, 2 Stra. 890; 1 Barn. B. R. 408, 413, S. C. See 1 Tidd, 698, 9th edit.

Harris, who was sent for, and arrived about nine. Notice of this was given to Smallridge, who thereupon sent his clerk to the inn to prepare the warrant of attorney, and about ten o'clock went thither himself with John Hulls, another attorney, whom he requested to accompany him for the purpose of attesting the execution: the reason assigned in his affidavit for doing so was, that, as it was late, there might be difficulty in procuring the attendance of an attorney, if the defendants were not provided with one. It was further sworn by Smallridge and Hulls, that, upon their entering the room, Hulls informed the defendants S. and J. Gardner who and what he was, and stated that it was necessary some attorney should be present to attest the execution of the warrant of attorney, and explain it to them, and inquired whether they had any particular attorney whom they should wish to attend on their behalf; to which they replied that they had not, and they had no objection to Hulls doing what was necessary, as they perfectly understood what they were going to do. (This conversation was denied by S. and J. Gardner in their affidavits in answer, and they stated that Hulls was a stranger to them, and not looked upon by them as their attorney, and that, at the time in question, they considered Smallridge as acting on their behalf.) The warrant of attorney, for securing 407., was read over to the defendants, and (as stated on one side, but denied on the other) was explained to them by Hulls; it was then executed by them, and attested by Hulls in their presence. Hulls demanded and received payment of them for his attendance. The defendant John Gardner, *paid one instalment of 51. 5s. without making any objection.

[*373

The Solicitor-General now shewed cause. Osborne v. Davis, 4 Taunt. 797, is no authority, at least in the present case. That was a decision on a rule of the Common Pleas, Hil. 14 & 15 Car. 2, also adopted in K. B. the same year: but does not affect the later rule of the Court of King's Bench, Easter 4, G. 2, by which the Court (taking notice of great inconveniences following from holding a warrant of attorney to confess judgment by one in custody to be good, if any attorney, though for the opposite party, were present,) ordered, that in future "no warrant of attorney executed by any person in custody of any sheriff or other officer, for the confession of judgment, shall be valid or of any force, unless there be present some attorney on the behalf of such person in custody, to be expressly named by him, and attending at his request, to inform him of the nature and effect of such warrant of attorney before the same is executed, which attorney shall subscribe his name as a witness to the due execution thereof." (a) Here, even upon the affidavits on the other side, it would be necessary to contend that a stranger who happens to be present, though not sent for by the party in custody, may be asked to attest the deed, and supply the place of an attorney on his behalf, which is not the intention of the rule. *Sir James Scarlett contrà. Upon the facts stated in support of this application, it cannot be contended that Hulls was not an attorney [*374 present on behalf of the defendants within the meaning of the rule of Court. Osborne v. Davis, 4 Taunt. 797, is applicable to the later rule as well as to that of 14 & 15 Car. 2, and surely Hulls was the attorney of the party who paid him.

DENMAN, C. J. The rule of Court was certainly violated in this case by Smallridge, in taking an attorney to attest this instrument who was not named or sent for by the party in custody. The present rule must, therefore, be dis charged; but as an instalment was paid under the warrant of attorney without objection, it must be upon the undertaking of the defendants not to bring any

action.

PARKE, J. concurred.

TAUNTON, J. I am of the same opinion. Hutson v. Hutson, 7 T. R. 7, is decisive on this point. Lord Kenyon there observed, "There is great weight in the observation made by the counsel in support of the rule (Bayley,) that

(a) See 2 Stra. 902, 1 Tidd, 549, 9th edit., and the rule, Hil. 2 W. 4, I. 72, 3 B. & Ad. 384, to the same effect.

the defendant, under the pressure of an arrest, ought to be considered incapable of waiving the benefit of this rule, and that, at all events, and in all cases, he should be protected by the advice of an attorney expressly attending for him." PATTESON, J. concurred. Rule (for rescinding the order) discharged.

*875]

SIMS and Others v. BRITTAIN and Others.

A., B., and others, were owners of a ship in the service of the East India Company. B. was managing owner, and employed C. as his agent for general purposes, and amongst others, to receive and pay moneys on account of the ship; and C. kept a separate account in his books with B., as such managing owner. To obtain payment of a sum of money due from the East India Company on account of the ship, it was necessary that the receipt should be signed by one or more of the owners, besides the managing owner, and upon a receipt signed by B. and one of the other owners, C. received on account of the ship 20001. from the East India Company, and placed it to B.'s credit in his books, as managing owner. The part owners having brought money had and received, to recover the balance of that account: Held, that C. had received the money as the agent of B, and was accountable to him for it; that there was no privity between the other part owners and C., and subsequently that the action was not maintainable.

ASSUMPSIT for money had and received. Plea the general issue. At the trial before Lord Tenterden, C. J., at the London sittings after last term, the following appeared to be the facts of the case:

The plaintiffs were surviving joint owners of a ship called the Princess Charlotte of Wales, which was in the service of the East India Company. Another part owner, now deceased, of the name of Gribble, was appointed by all the owners ship's husband. The defendants were employed by Gribble as his agents for general purposes, and amongst others, to receive and pay moneys on account of this vessel. Besides Gribble's general account, there was a separate account kept by the defendants in his name, as managing owner, of the ship's disbursements and earnings: the account between Gribble and his co-owners was also kept at the defendant's counting-house. The last two accounts did not correspond, the defendants' commission for managing the ship, and a charge for the hire of their counting-house for the audit of the account between Gribble and the owners, being carried through several years to Gribble's general account with the defendants by his direction. The defendants always received their directions from him. In order to obtain a final settlement of the freight of this *376] vessel with the *East India Company, it was necessary that the receipt for the balance should be signed, not by the managing owner only, but by one or more of the other owners also. This had been done in the month of April 1829, and the balance of 20007. and upwards, received by the defendants on the joint receipt of Gribble, and of Sims, one of the plaintiffs; and the amount was placed by the defendants to Gribble's credit, in his account with the defendants as managing owner of the ship. The action was brought by the plaintiffs to recover the balance appearing due on that account, as money had and received to their use. The defendants sought to retain it, as there was a balance due from Gribble to them on the general account. Lord Tenterden was of opinion on the trial, that Gribble had been permitted by the owners to have the absolute dominion of the ship's carnings, and that there was no privity between the plaintiffs and the defendants; and therefore he directed a nonsuit.

Sir James Scarlett, in the early part of term, moved for a new trial. The money received by the defendants belonged to all the part-owners. The defendants knew that, for they could not obtain payment from the East India Company until they procured the concurrence of Sims. Having received the money after that, they must be taken to have received it on account of all, and to be responsible to all. Cur. adv. vult.

[*377

PARKE, J., (a)during the term delivered the judgment of the Court. *This was an application to set aside a nonsuit, and for a new trial, made before my brothers Taunton, Patteson, and myself. We were desirous before we gave our opinion, to see Lord Tenterden's note, and the documents given in evidence, and having done so, we entirely agree with the opinion expressed by him at the trial, that there was no privity between the plaintiffs and the defendants; and consequently that this action will not lie. (He then stated the facts of the case, and proceeded as follows.)

Although the concurrence of one of the plaintiffs was necessary in order to enable the defendants to receive the money from the East India Company, yet it was received by the defendants as the agents of Gribble, and they by such receipt became accountable to him for it. The transaction was, in effect, the same as if Gribble himself had received the money, and it had been handed over to Gribble, who had then placed it in the defendants' hands on his own account; in other words, had made a loan of the money to them. The entry of the sum to Gribble's credit on a separate account, is only a mode of keeping the accounts between Gribble and the defendants, for the sake of convenience: a plan which is adopted between a customer and his banker, the latter being nevertheless in all such cases responsible and indebted to the customer alone.

[*378

In this case the money appearing to the credit of Gribble, was subject to his sole disposition, and payable by the defendants to his order only, and the case is just the same as if the defendants had been Gribble's bankers, and by his direction, and for his convenience, *kept a separate account of one part of his funds. If the other part owners, the plaintiffs, had been unwilling to trust Gribble alone with the money, they should have raised a separate account in their own names, or as owners of this ship, with the defendants; and then they would have been responsible to them. That they have not done; and therefore they cannot treat the defendants as their debtors. They were debtors to Gribble, and are now responsible to his executors. There must therefore be

no rule.

Rule refused.

LUCAS and Another v. The LONDON DOCK Company.

Nov. 26.

Goods consigned to A., and warehoused at the London Docks, were claimed by B. The Dock Company required an indemnity of A., the original consignee, before deliver ing them to him; A. refused, and brought an action of trover, with counts for special damage for the detention. On motion by the company for relief under the interpleader act, 1 & 2 W. 4, c. 58, B., upon due notice, not appearing, the Court held, that the claim of B. against the company was barred, but that A. ought not, by reason of the act, to be precluded from recovering for his special damage, if any.

The rule was made, that on the defendants undertaking to deliver up the wine, then, if A. should accept the same, the action should be discontinued on payment of costs by the defendants; but if A. should go on with the action, the count in trover should be struck out, and A. proceed for the special damage only.

IN July, 1830 forty-two casks of wine arrived at the London Docks from Calcutta, consigned to the plaintiffs, and warehoused in their names. In April, 1832 notices were severally given to the Company by persons named Masson and Lundie that the wines had been shipped from Madeira for Calcutta, and New York by certain parties respectively entitled thereto, and that the captain of the ship had fraudulently sold them at Calcutta, from whence they had been shipped for London, consigned as above; and the company were desired, on [*379 behalf of the alleged owners, not to deliver the wines without the order of their agents. In May following a letter was sent to the company threatening an action by one of the parties interested, if the wines were delivered without

(a) This case was moved before Denman, C. J. took his seat on the bench.

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