ment was it ever heard of that on such an occasion the whole testimony of the former witness should be struck out? A witness is called to prove a notice to produce a written instrument: upon cross examination he makes some incorrect statement: is the party who calls him and who controverts this statement to be precluded from giving a copy of the written instrument in evidence, because, as it has been argued, the testimony of the witness as to the notice is to be struck out? Such a rule would lead to the greatest inconvenience.

The rule as laid down by Mr. Justice Buller is intelligible and clear, namely, that a party shall not be permitted to throw general discredit on a witness whom he has put into the box; but it would be monstrous if the whole of his testimony were to be struck out because a subsequent witness sets him right as to a single fact which he may have stated incorrectly.

1831.

BRADLEY

V.

RICARDO.

Rule absolute.

HEWITT V. PIGOTT, Sheriff of SOMERSET.

HEWITT v. Lord EGMONT.

Nov. 23.

pro

THE 'HE Plaintiff had a judgment for 24971. 8s. 8d. in Plaintiff had the above cause against Lord Egmont, whose judgment against E. perty, by a deed of November 1824, had been conveyed for 24974, to C. F. Adey and others in trust to sell and pay creditors.

The Plaintiff issued a fi. fa. on this judgment, to which Pigott, the sheriff of Somersetshire, indemnified

and issued a writ of fi. fa., to which the

sheriff returned nulla bona, being indemnified by E.'s

attorney, to whom, with other trustees, E.'s property had been conveyed in trust, to pay creditors. A verdict having been given for the sheriff, in an action against him by Plaintiff for a false return, Plaintiff was not allowed to set off the costs in that action against the debt due on the judgment for 2497%.

by

1831.

HEWITT

บ.

PIGOTT.

by Adey on the part of Lord Egmont's trustees, returned nulla bona.

The Plaintiff, thereupon, sued Pigott the sheriff for a false return. Adey appeared as attorney for Pigott, in whose favour the verdict was ultimately found.

Cross Serjt., upon an affidavit of the foregoing facts, and that Adey had offered the Plaintiff 700l. and a debenture for a 1000l. in discharge of his claim on Lord Egmont, obtained a rule nisi to set off the costs payable by the Plaintiff in the action with Pigott, against the judgment in the action with Lord Egmont.

Wilde and Jones Serjts. shewed cause, upon an affidavit which stated that after the offer made by Adey to the Plaintiff, discoveries had been made by which the Court of Chancery had been induced to stay the proceedings on the judgment against Lord Egmont, and to direct a Master to investigate the Plaintiff's accounts; an investigation which was still pending. But they relied on the objection, that the two actions were not between the same parties; for, admitting that Adey had acted for Lord Egmont in some particulars, the indemnity given by him in the action against the sheriff, was not given on behalf of Lord Egmont, but of the trustees under the deed of 1824, and the general body of creditors.

Cross Serjt. contended, that as the trustees represented Lord Egmont he must be considered the real Defendant in the action against the sheriff.

TINDAL C. J. The question upon the rule is, are the costs payable by the Plaintiff in his action against the sheriff, to be written off against the debt due to him on his judgment against Lord Egmont? Are the funds to be resorted to in the two actions substantially the

same?

same? Even supposing the trustees to be substantially the Defendants in the action against the sheriff, the action is hostile to them, and to the parties whom they represent; the Plaintiff, in suing the sheriff, seeks to obtain a priority over the other creditors of Lord Egmont. To yield to this application, would be to give him the priority to the extent of the costs in that action, and enable him to fight the question at the expense of the creditors at large. It is clear, therefore, that the two suits are not substantially between the same parties, and the rule must be discharged.

GASELEE J. I am of the same opinion; we could not, in any view of the case, set off one demand against the other without going into the Plaintiff's account, and that account is now before the Court of Chancery.

BOSANQUET J. The ground for this application, namely, that the parties are substantially the same, entirely fails. One action is against the sheriff; the other against the Earl of Egmont. The sheriff is indemnified by trustees for creditors, among whom the Plaintiff is one, and the Earl of Egmont is only so far interested as respects the surplus, if any, after the discharge of the trust. The trust-deed is the deed of the creditors, and the suit against the sheriff is substantially a suit against them.

ALDERSON J. I am of the same opinion. In applications, like this, to the equitable jurisdiction of the Court, we must see our way clearly before we interpose. In the present case, we might do gross injustice by acceding to the Plaintiff's demand. If the estate of Lord Egmont be insolvent, we should injure the other creditors. If it be solvent, the Plaintiff in the long run will be indemnified for his loss.

Rule discharged.

1831.

HEWITT

V.

PIGOTT.

1831.

Nov. 24.

The Court

refused to discharge the

rule for a spe

ANDREWS v. THORNTON.

THE Defendant, after notice of trial, served a rule for a special jury on the 31st of January last. The cause, which was an action for slander, stood for trial on the 8th of July, but did not come on. The Defendant that the De- having up to the present time omitted to strike his special jury,

cial jury, on the ground

fendant had

obtained it in

January 1831, and up to the Michaelmas term following had omitted

to strike the jury, although the cause stood for trial in July.

Wilde Serjt. obtained a rule nisi to discharge the rule of the 31st of January.

Spankie Serjt., who shewed cause, referred to Bloxam v. Brown (a), Tripp v. Patmore (b), and Thorne v. Marquess of Londonderry (c), contending that the Court would not discharge the rule for a special jury unless it were distinctly sworn that the cause was not proper to be tried by a special jury, and that delay alone was the object which the party had in view.

Wilde.

The present case is distinguishable from those which have been cited; for the Defendant here, by omitting to strike his special jury for such a length of time after notice to try by a common jury, has in effect abandoned his rule. By striking the special jury now, he will be enabled to postpone the trial till after Hilary term.

TINDAL C. J. A rule must be made in future to obviate this inconvenience. But I cannot say the Defendant here has so far erred as to exclude himself from the right to a special jury; at the same time, as there (b) 4 B. M. 470.

(a) 4 Taunt. 470.

(c) Ante, 26.

has

has been cause for complaint, the rule must be discharged without costs.

1831.

ANDREWS

Rule discharged accordingly.

V.

THORNTON.

BOWER v. JONES.

Nov. 24.

IN

T., an agent,

was to have

a commission on all sales orders executed by him; the principal to be responsible for bad

effected, or

debts, and the his commisagent to draw

By the custom of the trade, commission was not al

lowed on sales

N an action against the Defendant as guarantee of By agreement, Benjamin Tupling, an arbitrator found specially, that on the 2d of January 1826, it was agreed between the Plaintiff and B. Tupling, that the said B. Tupling should become the agent for the sale of the Plaintiff's manufactured stock of goods in London and its vicinity, for which the Plaintiff was to pay him a commission of 5l. per cent. on all goods sold or orders executed through the London markets, the Plaintiff to be responsible for all bad debts contracted in his name for the purpose of carrying on his business, and to allow the said B. Tupling to draw sion monthly. his commission monthly, he, B. Tupling, at the same time undertaking to make due remittances from time to time of monies received on account of the Plaintiff, and to make up all the accounts monthly; also to give security that the amount of stock and book debts should be appropriated solely for the use of the Plaintiff: That on the 9th of January 1826 the Defendant duly ing, that under executed a guaranty in writing to the Plaintiff, in the the terms of this agreement words and figures following; "In consequence of T.was entitled an agreement entered into the 2d of January 1826, by to commission Joseph Bower to supply Benjamin Tupling with stock on bad debts. of plated goods to sell for him on commission, I hereby agree as surety to guarantee Mr. Bower to the amount of 2001. for a due return of the stock in hand, and payment of the monies received on account of the said Joseph Bower, agreeably to the engagement subsisting between them. Samuel Jones:" Upon the faith of VOL. VIII. which

F

which produced bad debts: Held,

notwithstand