must, although brought before the Court on equitable grounds, not vary the right of demand alleged in the declaration; Reis v. Scottish Equitable Assurance Society (a),

1858.

DE

POTHONIER

V.

Hunter v. Gibbons (b). The facts set out in the replica- DE MATTOS. tion here would give this plaintiff no right to sue.

Unthank, for the plaintiff. The replications are good. Before The Common Law Procedure Act, 1854, a Court of law could look only at the nominal plaintiff; and what was an answer to his claim was an answer to the claim of the person for whose benefit the action was brought. That was decided in Jones v. Yates (c), Gibson v. Winter (d), and other cases. But even then a Court of law could exercise an equitable jurisdiction so far as to permit the assignee of a chose in action to sue in the name of the assignor, and to refuse to allow a plea of payment by the defendant, after notice to such assignor; Legh v. Legh (e); or of a release between them, where such release was, to the knowledge of the defendant, in fraud of a third party interested in the claim; Phillips v. Clagett (g). It appears from Hammond v. Messenger (h) that a Court of equity will allow the assignee of a debt to proceed in equity directly against the debtor where the assignor has done any act which would prevent the assignee from recovering at law in the assignor's name. That is an authority to shew that, under such circumstances as, for instance, in the present case, a Court of law may, in the exercise of its equitable jurisdiction under the statute, entertain an equitable claim of

1858.

DE

v.

DE MATTOS.

the assignee. These replications, therefore, are clearly within the language of sect. 85, since they "avoid" POTHONIER the "plea on equitable grounds." They shew that the assignee is really the plaintiff; the replications must be considered as his; and he is, practically, the party who sets up the fraud of the nominal plaintiff. In Craib v. D'Aeth (a) a similar replication was pleaded.

Cleasby, in reply. The replications, in effect, allege that the action was brought to support an equitable claim. The plaintiff, if that be so, should have sued in a Court of equity: the statute permits only such answers as support, on equitable grounds, a claim which, in its inception, is a legal one. The effect of

the replication here is to set up a fresh plaintiff; that is not supporting the original legal claim, or answering, on equitable grounds, the plea which is the legal defence to that claim. Craib v. D'Aeth (a) is in favour of the defendant; for it shews that a replication in this form, if it is to be considered as a replication at all, would have been just as good before The Common Law Procedure Act, 1854, as after it: and that therefore the replications here are not, as they profess to be, replications under the provisions of that statute.

Lord CAMPBELL C. J. I am of opinion that these equitable replications are good. The object of sect. 85 of The Common Law Procedure Act, 1854, was to allow an equitable replication to a plea which sets out facts that can be answered upon equitable grounds: such a plea, in fact, as the Court would, before the

(u) Note (b) to Bauerman v. Radenius, 7 T. R. 670.

any

statute, have set aside in the exercise of what was called its equitable jurisdiction. Ever since Winch v. Keeley (a) Courts of law have allowed the assignee to sue in the name of the assignor, and, where defence to the assignee's claim is founded on fraud by the nominal plaintiff, will set such defence aside. By the statute it was intended that the assignee should be allowed to put his own answer to such a defence upon the record, instead of bringing it forward, as he was obliged to do before, by affidavit. Gibson v. Winter (b) was no doubt a correct decision as the law then stood; we could then look only at the parties on the record, though we had, even then, an equitable jurisdiction, in the exercise of which we could set aside a plea upon grounds which would induce a Court of equity to do so. Here the replications are clearly within the statute: they deny that the nominal plaintiff had any right to release, inasmuch as, at that time, he had no interest, and is, in consequence, not the real plaintiff when the action was brought. The replications, therefore, "avoid" the "plea on equitable grounds."

COLERIDGE J. In deciding this question I think we may confine ourselves to the construction of sect. 85 of The Common Law Procedure Act, 1854. To that section we ought to give as liberal a construction as we fairly can: and I do not think that we should be doing so if we held, as has been contended for the defendant, that an equitable replication under the statute must be in support of a demand which, in its inception, is a legal Before the statute, a cestui que trust could sue in

one.

1858.

DE POTHONIER

V.

DE MATTOS.

1858.

DE POTHONIER

V.

DE MATTOS.

the name of the trustee; and in certain cases, as here, the assignee in the name of the assignor. The declaration here is met by an inequitable plea. That plea we could, in the exercise of our equitable jurisdiction, have set aside before the statute; and the object of sect. 85 was to give to the plaintiff the power of answering such a plea himself, and making such answer a part of the record, when it avoids the plea upon the equitable grounds. The replications do so here; and the plaintiff is therefore entitled to judgment.

ERLE J. The replications here are clearly such as the Legislature intended, under sect. 85, to enable a plaintiff to put upon the record, instead of going into a Court of equity for relief, or availing himself, by a circuitous process, of the equitable jurisdiction of the Courts of law. Here the party really interested is suing in the name of the nominal plaintiff. The plea is a legal answer to the nominal plaintiff, but not an equitable answer to the real plaintiff, the assignee; the replications avoid that plea upon equitable grounds, and are clearly within the provisions of the statute.

(CROMPTON J. was absent.)

Judgment for the plaintiff.

1858.

HENRY JOHN SYRED, appellant, against MARY Saturday,

THIS

CARRUTHERS, respondent.

HIS was a case stated, by a justice of the borough of Liverpool, for the opinion of this Court, under

stat. 20 & 21 Vict. c. 43.

May 29th.

Under stat. c.99. s. 24. the injury done to goods pawned, by an acci

39 & 40 G. 3.

dental fire on the premises broker, not affirmatively shewn to have

of a pawn

occurred

through the lect or wilful

default, neg

misbehaviour of the pawn

broker, does

not authorize

a

justice to

give satisfacon to the

pawner; there

The appellant was summoned before the justice upon an information and complaint, laid by the respondent, which charged the appellant: "For that Henry John Syred, heretofore, to wit on the 25th day of August then and now last past, at the borough aforesaid, being a person then and there using and exercising the trade and business of a pawnbroker, did lend and advance to one Mary Carruthers the sum of 17. 5s. upon certain goods, to wit" &c., "the property of the said M. Carruthers, then and there pawned and pledged by the said M. Carruthers with the said H. J. Syred, as such pawnbroker as aforesaid; and that the said goods remained pawn and so pledged as aforesaid with the said H. J. Syred, so being such pawnbroker as aforesaid, at the borough aforesaid, until the said 22d day of February last: and that, within one year after the pawning and pledging of the said goods as aforesaid, and within twelve calendar months now last past, to wit on the 22d day of February last, at the borough aforesaid, the said M. Carruthers applied to the said H. J. Syred, so obtaining the

in

said

being no primà

facie presump

tion that such fire is owing

to the default,

&c. of the owner of the premises.

When a

case is stated

under stat.

20 & 21 Vict.

c. 43., sect. 2

is satisfied if the appellant, within three days of his

case from the justice, seeks

to find the respondent, but cannot do so, and, within such three days, gives notice to the attorney who represented the respondent before the magistrate, and, after the expiration of the three days, gives notice to the respondent, who does not object. Under such circumstances, the Court will hear the appellant though the respondent does not appear.