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The principal facts appearing on the affidavits on both 1862.
sides were, that a Captain B. as principal debtor, and Sir „'""""' 1 T> • • Edmonds
J. F. and the defendant, S. B., his sureties, had entered *
into a bond for securing 5,000/. to the plaintiff, and the defendant had also, as a further security,executed a warrant of attorney to the plaintiff, on which the judgment referred to was entered up against the defendant; and the defendant was in January, 1862, taken in execution for a sum exceeding 5,000/., for principal, interest and costs. Sir J. F., in discharge of his liability as co-surety on the bond, paid the amount indorsed on the ca. sa., and an agreement was signed, by which the defendant and Captain B. agreed to assign certain interests in property as security for sums (including the sum so paid) which Sir J. F. had paid, or was liable to pay as surety. The defendant had been requested to execute the assignment and warrant of attorney, but had not done so; and no part of the payments of Sir J. F. had been reimbursed, either by the principal or by the defendant. An action was pending at suit of Sir J. F. against the defendant, for a sum of 14,000/., including the money paid by him in January. On the 22nd of November instant the defendant was again taken on a ca. sa. issued on the judgment, the ca. sa. being indorsed to levy 2,500/. The affidavits, in opposition to the summons, stated that after the payment by Sir J. F. in January, the warrant of attorney and judgment against the defendant were held by the plaintiff and Joseph Joel, for whom, in fact, the plaintiff was really a trustee, on behalf of and in trust for Sir J. F.; and that the first ca. sa. was issued with their knowledge and consent, but for the sole benefit of Sir J. F., and reliance was placed on the provisions of the Mercantile Law Amendment Act.
Garth, in support of the summons, contended that the section referred to did not authorize the taking in execution a second time, and that, if it did, the second ca. sa.
1862. could not be issued until an assignment of the judgment should be executed by the judgment plaintiff; and that the agreement of January last, whereby particular security was to be given to Sir J. F., excluded the right to resort to this remedy.
Aspland, in opposition to the summons, contended that Sir J. F., as co-surety, paying the whole debt, had a right to resort to all securities given by the co-surety for the recovery of the moiety so unpaid, and referred to Thompson v. Parish(a), as showing that the former taking in execution did not satisfy the judgment, or extinguish the debt. The decisions in Equity, before the late statute, had laid down that a surety or co-surety could not have the benefit of a judgment where it was satisfied by payment, and the statute was expressly passed to alter this. Payment, therefore, did not preclude this remedy, and it could not be said that Sir J. F. had let the defendant out of custody. That was involuntary and was the act of the law (b), and was also in point to show that this remedy existed. No previous assignment of the judgment was necessary, and there was what amounted to an assignment.
Cbompton, J., said, he had at first had a doubt, whether the judgment creditor could confer a greater right than he himself possessed, but this seemed to be met by the express terms of the section. The circumstances showed an equitable assignment of the judgment remedy to Sir J. F., and there was nothing in the assignment of January to exclude the resort to the remedy in question; and dismissed the summons.
(a) 28 L. J., C. P. 153. L. J., C. P. 39, and 9 C. B., N. S.
(6) Batchellor v. Lawrence, 30 543.
ABDUCTION: taking girl out of streets. R. v. Green, 274.
ABUSE OP PROCESS, order for delivery up of property obtained by. Leverson v.
ACCEPTANCE, evidence of what is, under Statute of Frauds. Bowes v. Pontifei,
ACCOUNT BOOKS, inspection of plaintiff's. Fergusson v. Coombe, 87.
ACCOUNTS, contract to render, pleading on. Great Ship Co.v. Russell, 94.
ACTION, right of, or liability to; liability of Secretary of State or public officer in the
ADDING PLEA after issue joined. Carrick v. Holderness, 99.
ADJOURNMENT OF TRIAL, terms on which granted. Bremner v. Dando, 231.
ADMISSIONS OF DEED, explanation of. Painter v. Abel, 518.
ADVERSE POSSESSION of lands under the Statute of Limitations—possession not
AGENT, employment of, to obtain loan, right of action on. Green v. Reed, 226;
Thompson v. Clark, 181; Topping v. Htaley, 325; Mason v. Ctifion, 899.
v. Dresslar, 212.
AGREEMENT in writing, adding terms to, by oral evidence. Arbon v. Fussell, 152.
Smith, 97. (And see note on subject, p. 98.)
AMENDMENT: order for compulsory; pleading "embarrassing," terms of traverse
AMENDMENT at Nisi Prius, "real question in controversy," what is to be considered
ANIMALS, dangerous, or accustomed to injure mankind; action against owner for
APPARENT EASEMENT, evidence and law as to. Spanton v. Hinves, 52.
APPEAL from rule for new trial; special case; settling; delay. Hunt v. Allgood,
ARBITRATION, reference to, compulsory agreement for reference of future disputes;
ARCHITECT, right of, to remuneration for making out quantities; building contract
ARREST on mesne process; liability for, when malicious. Melia v. Neate, 757.
ARSON : setting fire to buildings and goods separate counts, all one continuous act;
ASSAULT: justification. Chambers v. Miller, 203.
ASSIGNMENT OF GOODS: post-nuptial settlement; intent to delay or defraud.
ATTORNEY, liability of, to action; for improperly suing in a Superior Court instead
ATTORNEY AND CLIENT: claim for costs; defence to; no benefit; improper
AUCTIONEER, application by, for interpleader, on claim by third party adverse to
AUTHORITY to raise money in name of blank acceptor. King v. Forbes, 41.
for. Pickernefl v. Juubcrry, 217.
BAILIFF OF COUNTY COURT, liability of, after interpleader order. Lewis v.
BANKER, duty of, not to disclose state of customer's accounts. Foster v. Bank qj
BANKRUPTCY, actions by assignees in; fraudulent preference. Graham v. Candy,
BIGAMY, evidence on indictment for; prisoner's first and second marriages; evi-
BILL OF SALE, contract of warranty collateral to. Stuckey v. Bailey, I.
BILLS OF EXCHANGE, contract to pay by; damages. Morley v. Baker, 146.
drawing and indorsing, in name of deceased person. Ashpitel v. Bryan, 183.
BILLS OF LADING, authority of master to alter. Pickernell v. Jauberry, 217.
BOOKS OF ACCOUNT, inspection of. Fergusson v. Coombe, 87.
BROKER, notes of, when at variance; separate sales. Fisenden v. Levy, 477.
right of, to commission. Cousins v. Mitcheson, 236; Rucker v. Lunt, 959.
BUILDING, contracts as to; oral evidence; extras. Franklin v. Darke, 65.
CARRIERS, liability of, for damage to goods; liquids in casks; contributory negligence
and damaged by weather. Cohen v. Gaudet, 455.
COLLATERAL ISSUE, what is not so; admissibility of evidence as to any point
COMMISSION, liability of employer for. Green v. Reed, 226; Thompson v. Clark,
COMPARISON OF HANDWRITING in criminal cases. R. v. Aldridge, 781.
CONSPIRACY, action on the case in the nature of. Dickson v. Combermere, 527.