debt, would be a good discharge. But it is contended that the acceptance of a bill of exchange by one of two debtors cannot be a good satisfaction, because the creditor gets nothing which he had not before. The written security, however, which was negotiable and transferable, is of itself something different from that which he had before; and many cases may be conceived in which the sole liability of one of two debtors may be more beneficial than the joint liability of two, either in respect of the solvency of the parties, or the convenience of the remedy, as in cases of bankruptcy, or survivorship, or in various other ways: and whether it was actually more beneficial in each particular case, cannot be made the subject of enquiry. The cases of Lodge v. Dicas (a) and David v. Ellice (b), are said to be against this view of the law. In the former, however, no new negotiable security was given, nor does the difference between the joint liability of two, and the separate liability of one, appear to have been brought under the consideration of the Court. In the latter, no bill of exchange was given, and that decision, on consideration, is not altogether satisfactory to us. We cannot but think that there was abundant evidence in that case to go to a jury (and upon which the Court might have decided), of the payment of the old debt by Inglis, Ellice, and Co. to the plaintiff, and a new loan to the new firm; which might have been as well effected by a transfer of account by mutual consent as by actual payment of money. The cases of Evans v. Drummond (c) and Reed v. White (d) are authorities the other way. In the former, (a) 3 B. & A. 611. (c) 4 Esp. N.P.C. 92. (b) 5 B. & C. 196. 1834. THOMPSON against PERCIVAL. Lord 1834. THOMPSON against PERCIVAL. Lord Kenyon points out forcibly the altered relation of the parties by the substitution of the bill of the remaining partner for that of the firm; and it is difficult to see on what ground he decided the case, unless upon this, viz. that such substitution under an agreement operated as a satisfaction, as far as regarded the retiring partner; and in Reed v. White, Lord Ellenborough acted upon that authority and so directed a special jury of mer chants, who entirely agreed with him. These cases were afterwards brought to the notice of Lord Ellenborough, who expressed his approbation of them, in Bedford v. Deakin (a). That case, however, (which was also before the court in 2 B. &. A. 210.) was distinguished from them, because the creditor there expressly reserved the liability of the original debtors. If, therefore, the plaintiffs in this case did expressly agree to take, and did take the separate bill of exchange of James in satisfaction of the joint debt, we are of opinion that his so doing amounted to a discharge of Charles. No point was expressly made at the trial as to the proof of such agreement, nor was it required that the question should be put specifically to the jury. We think that this ought to be done, and consequently the rule must be made absolute for a new trial. Rule absolute. In February 1834 Charles Percival became bankrupt. On the 3d of May his attorney gave notice that he should carry down the cause by proviso; and it was so carried down on the 3d of June, without the concurrence of Charles Percival's assignees. The plaintiffs had not proved under the commission. (a) 2 Stark. N.P.C. 178. Chilton, Chilton, in Trinity term 1834, moved, on behalf of the plaintiffs, for a stet processus, on the ground that they would otherwise be compelled to proceed in this action, without any possibility of benefit if the cause went on, inasmuch as the certificate would be a bar to debt and costs, if they obtained a verdict; and he contended that, under 6 G. 4. c. 16. s. 59. (a), the Court had an equitable power to grant this rule. Hoggins shewed cause in the first instance. The application is novel. The statute 6 G. 4. c. 16. s. 59. gives the plaintiffs the choice between the two courses of continuing the action, or proving under the commission. As they have not proved, they must be held to have elected to proceed in the action. Again, Charles Percival's attorney has a right to take the record down by proviso, in order to enforce his lien for his costs in the event of the plaintiffs failing to obtain a verdict. The bankrupt had the right himself of carrying the cause down by proviso; for if this application were to succeed, his own attorney's costs would be proved against the estate. Lord DENMAN C. J. It does not appear that any authority can be produced, sanctioning our interference (a) It enacts," that no creditor who has brought any action, or instituted any suit against any bankrupt, in respect of a demand prior to the bankruptcy, or which might have been proved as a debt under the commission against such bankrupt, shall prove a debt under such commission, or have any claim entered upon the proceedings under such commission, without relinquishing such action or suit;" and afterwards, that "the proving or claiming a debt under a commission by any creditor shall be deemed an election by such creditor to take the benefit of such commission, with respect to the debt so proved, provided that such creditor shall not be liable to the payment to such bankrupt or his assignees, of the costs of such action or suit so relinquished by him." 1834. THOMPSON against PERCIVAL 1834. THOMPSON against PERCIVAL. in this case; and in default of a direct authority, we see no ground for our granting the application. The plaintiffs were the best judges as to the propriety of commencing the action in the first instance; and they have not elected to take the course pointed out by the fifty-ninth section of the bankrupt act, of proving under the commission and abandoning the action. LITTLEDALE J., TAUNTON J., and WILLIAMS J., con curred. Rule discharged. Friday, One of several partners in trade, who pays money on SADLER against NIXON. ASSUMPSIT for money paid by the plaintiff to the defendant's use, &c. At the trial before Den account of his man C. J., at the London sittings after last Michaelmas co-partners, an action against them for contribution on the ground that he made such payment not voluntarily but of law. case: cannot maintain term, the following appeared to be the facts of the - The plaintiff, the defendant, and another person, being co-partners in trade, employed a builder to repair a building which was their joint property, and in which they carried on their trade. The builder by compulsion brought an action against the three co-partners for the repairs, and obtained judgment, but took the plaintiff only in execution, who, in order to regain his liberty, paid the whole debt. The present action was brought to recover one third of the money.so paid. It was contended that the plaintiff, one of the three joint contractors, having been compelled to pay money which his co-contractors were jointly liable to pay, was entitled to maintain maintain this action. On the other hand, it was said that the plaintiff and the defendants in the first action being not merely co-contractors, but co-partners in trade, one of them could not maintain an action against the other to recover money paid on account of the firm, but that his remedy was by bill in equity; the reason why an action at law in such a case was not maintainable, being, that it would be useless for one partner to recover what, upon taking a general account among all the partners, he might be liable to refund, and this objection applying as well to a compulsory as to a voluntary payment. The Lord Chief Justice was of that opinion and nonsuited the plaintiff, but reserved liberty to him to move to enter a verdict. F. Pollock on a former day in this term moved accordingly. It may be conceded that where one partner voluntarily makes a payment on account of the others, he cannot maintain an action at law against his copartners; but it is otherwise where the payment is by compulsion. In Merryweather v. Nixan (a), where there had been a recovery in tort against two defendants, and the whole damages were levied on one, it was held that the one could not recover a moiety against the other for his contribution; Lord Kenyon there said, that he had never before heard of such an action having been brought, where the former recovery was for a tort; and "that the distinction was clear between this case and that of a joint judgment against several defendants in an action of assumpsit." It may be said, that that dictum only goes to shew, that contribution can be recovered at (a) 8 T. R. 186. 1834. SADLER against ΝΙΧΟΝ. law |