registered officers, proved a debt under the said fiat against the said T. E., sufficient to support the same; and such debt of the Northern and Central Bank is an existing debt, and was incurred not anterior to the debt of the said J. C., the petitioning creditor under the said fiat; this court doth order that [238] the said fiat issued against the said T. E. be proceeded in." The order in the present case should have been amended pursuant to that form. If, instead of adopting such form, reliance is placed on the recitals, these recitals should be distinctly referred to. In Byers v. Southwell (ante, 231 (a), the replication expressly stated, before setting out the order, that the substituted creditors "having then due and owing to them from the said J. C. (the bankrupt), and having before then proved under the fiat, debts sufficient to support the said fiat, the debts so due and owing from J. C. to J. S. and J. S. (the petitioners) having been incurred not anterior to the debt of any of them the said W. B., &c. (the petitioning creditors), did duly present their petition," &c. This replication was held to be bad.

TINDAL C. J.(b). This case comes before us upon a rule for a nonsuit, or for a new trial, upon certain objections that have been taken to an amended order made by the court of Review, for substituting a new debt in lieu of that of the petitioning creditor, under the provisions of the statute 6 G. 4, c. 16, s. 18. But though I think that upon one of these objections the defendant may be entitled to succeed, he ought not to be allowed to enter a nonsuit. I think he ought to have a new trial on payment by the plaintiffs of the costs of the last trial.

The objections are three in number, and may be taken in the following orderfirst, that the amendment in the order of the court of Review was improperly madeor, at least, that it cannot affect the defendant, as no notice of the application to make such amendment had been given to him-; secondly, that the amended [239] order must be considered as speaking from the date of its amendment, and not from its original date; thirdly, that the order, even as amended, does not follow the power given by the act of parliament, inasmuch as it does not adjudicate that the substituted debt had been proved under the fiat before the application which resulted in such substitution.

I cannot agree in the remark that there is any hardship in the provision of the statute, which empowers a good debt to be substituted for that of the creditor upon whose petition the fiat originally issued, but which has been found insufficient to support it; on the contrary, the provision appears to me to be both remedial and extremely beneficial, by putting an end to great expense in useless proceedings at law which formerly ensued from the absence of such a power. The object of the enactment is, that where a fiat has issued upon a debt which is afterwards found to be insufficient, the fiat shall not wholly fail upon that account, but that another debt shall be substituted which shall be sufficient to support the fiat; and this is to be done, under the proper and just restriction, that such substituted debt shall not have been incurred prior to that of the petitioning creditor; thereby preventing the fiat from having a greater reach than it would originally have had (a).

[240] With regard to the want of notice of the application to the court of Review

(b) It had been suggested by the lord chief justice, but not acceded to, that the order of the court of Review might be included in a bill of exceptions which had been tendered and was pending.

(a) By the French Code de Commerce, as amended by the law of the 28th of May 1838, the inception of the bankruptcy (faillite) may be carried back by a judgment of the commissioner (juge commissaire) on the application of any party interested, such application being open to opposition on the part of the bankrupt (le failli) within a week, and on the part of any other person interested, within a month, after the application has been affixed and published in the newspapers.-Articles 442 and 580. But no such application can be made after the expiration of the time allowed for the proof of debts.-Article 581. From this, as well as from other decisions of the commissioner, an appeal is given, the period for bringing which (in ordinary cases fifteen days), varies according to the distance of the domicile of the appellant from the place at which the judgment is pronounced, one additional day being allowed for every five myriameters (31 miles and 120 yards) in distance. Art. 582.

The same varying scale is adopted in the Code de Commerce pour les Etats de S. M. le roi de Sardaigne of 30th December 1842.

to amend the order, I am not aware that any necessity existed for giving such notice. Indeed, it is not easy to see to whom such a notice ought to be given. Is notice to be given to the whole body of debtors to the estate? or to all against whom actions may be pending? There might be a case, undoubtedly, in which it would be unjust to make such an order behind the back of a defendant in a pending action; as where the defence was founded upon the insufficiency of the petitioning creditor's debt; for, in the absence of such notice, the defendant might be taken by surprise and thrown out of his line of defence. In that case notice would be just, if not necessary; and probably some order would be made to prevent parties who had proceeded without giving notice, from recovering full costs of suit. The order in Ex parte Hale, may have been framed with reference to some such state of facts. Here, no such circumstances are suggested.

The second objection relates to the time from which the amended order is to take effect. I think that upon the principle upon which every amendment is allowed in legal proceedings, from the commencement to the end of the suit, it must be taken to be made nunc pro tunc, and that the order, as amended, must be read as though it had originally been drawn up in the state in which it appears. The amendment is confined to the recital, and must have been introduced to supply a misprision of the officer in drawing up the original order; and that, in a particular which must have been known to the [241] defendant, whose situation could in no way be changed by the amendment. The supposed hardship upon the defendant might be urged in every case of amendment. It frequently happens that defendants go down to trial in the hope of tripping up plaintiffs upon slight variances.

But, the third objection, namely, that the order, even in its amended state, does not shew that the substituted debt had been proved, under the fiat, before the application was made for its substitution, I am afraid must prevail; though, I own, I have anxiously endeavoured to extract from the order a declaration to that effect. It is certainly stated in the petition, as recited in the order; but that is merely the allegation of the petitioners. It is necessary that the precise fact should appear to have been adjudicated by the court of Review; but there is no finding or adjudication upon the subject. The court has thought it necessary expressly to adjudicate that the petitioning creditor's debt was insufficient, and that the substituted debt was incurred not anterior to such petitioning creditor's debt; and the fact of these two matters having been adjudicated upon in precise terms, strengthens the objection arising from the omission of the third. I fear, therefore, that we should trench upon the authority of Christie v. Unwin, if we were to hold this order sufficient. But as the objection is inter extremos apices juris, I cannot, as I before stated, consent that a nonsuit should be entered. The case should go down to a new trial upon payment of costs by the plaintiffs.

COLTMAN J. I admit the validity of the last objection with extreme reluctance. It seems to me that this objection lies in a very narrow compass. The order contains no allegation to satisfy us as to the time at [242] which the debt was proved. It does not say that the said debt was proved. Consistently with all that appears upon the face of the order, the debt of the petitioners may have been proved immediately before the order was made.

ERSKINE J. I am of the same opinion. I think the order must clearly be taken to speak from the time of its original date, and not from the time of the amendment; upon the principle which governs all cases in which an amendment is made. In substance and in effect, the original and the amended order are one and the same order. The only alteration is, the insertion of that which the officer should have inserted originally. I see neither injustice nor hardship in holding this, as the original order was made before the action was commenced. If the object had been after action brought to substitute a new debt for that of the petitioning creditor, there might have been some ground for opposing the alteration at the time, or for now taking an objection upon the want of notice; but that is not the case; for the order expressly provides, as is usual, that it shall not prejudice any action pending under the fiat.

As to the form of the order, it seems to me that it does not sufficiently appear upon the face of it, that the substituted debt had been proved at the time the petition was presented. It is so stated in the petition, as recited; but that statement is not adopted by the court in the mandatory part of the order. It might be, that the debt of the petitioners, though proved at the time when the order was made, had not been

proved, as the statute requires, when their petition was presented. For this reason I think the order is invalid. I concur, however, in thinking that this is not an objection upon which the plaintiffs should be nonsuited, but that there should be [243] a new trial on payment by them of the costs of the last trial (a).

Rule absolute for a new trial on payment by the plaintiffs of the costs of the last trial, before the last day of next term (b).

NORMAN v. CLIMENSON, BROWN, AND TIFFIN. May 7, 1842.

[S. C. 4 Scott, N. R. 735; 1 D. N. S. 718; 11 L. J. C. P. 191. Discussed,
M'Cormack v. Ross, [1894] 2 Ir. R. 549.]

To an action of trespass, by A. against B., C., and D., the three defendants pleaded jointly, and appeared by the same attorney and counsel. A. recovered a verdict against B. and C. on all the issues; and D. had a verdict against A. on all the issues. Held, that, in the absence of special circumstances, D., the successful defendant, was entitled to a third part of the costs of the joint defence; and that such third part might be set off against, and deducted from, the costs of A. against the other two defendants.

This was an action of trespass. The writ of summons was served on each of the three defendants, and a joint appearance was entered for them pursuant to the statute. The three defendants pleaded jointly by the same attorney, and the same counsel appeared for them at the trial. A verdict was obtained by the plaintiff against Climenson and Brown, and by Tiffin against the plaintiff, upon the whole of the issues. On the taxation of costs, the attorney for the defendants claimed to have one third of the general costs of the defence deducted from the costs to be allowed to the plaintiff; but the master refused to make such deduction, and only disallowed out of the plaintiff's costs, those costs which exclusively referred to Tiffin, as the service of the writ of summons upon him, &c.

Bompas Serjt., on a former day in this term, obtained a rule nisi for the master to review his taxation upon [244] an affidavit of the defendants' attorney, who stated that he had been employed by the defendants separately to defend the action, and that Tiffin, as well as the others, was liable to him for the costs of the defence. He cited George v. Elston (1 New Cases, 513; 1 Scott, 518) and Griffiths v. Jones (5 Tyrwh. 1092; 2 Cr. M. & R. 333).

Channell Serjt. now shewed cause. This is not a case in which some issues have been found for the plaintiff, and some for the defendants, in which case the master, pursuant to the rule of H. T. 2 W. 4, r. 74, would have been bound to deduct the costs of the issues found for the defendants from the plaintiff's costs. Neither is this an application to allow the costs of the defendant Tiffin; for the rule seeks to have a certain amount of costs deducted from the plaintiff's costs, in favour of all of the defendants. [Tindal C. J. By the thirty-second section of the 3 & 4 W. 4, c. 42, "where several persons shall be made defendants in any personal action, and any one or more of them shall have a nolle prosequi entered as to him or them, or upon the trial of such action, shall have a verdict pass for him or them, every such person shall have judgment for and recover his reasonable costs, unless, in the case of a trial, the judge before whom such cause shall be tried, shall certify upon the record under his hand, that there was a reasonable cause for making such person a defendant in such action."] There is no doubt that Tiffin may recover costs from the plaintiff. But no foundation has been laid for the application to review the taxation of the costs to which the plaintiff is entitled from the two other defendants; for, in order to obtain leave to set-off Tiffin's costs against the plaintiff's, some special circumstances should have been shewn; as in George v. Elston, where it was alleged that the plaintiff was insol-[245]-vent, and unable to pay the costs of the successful defendant. Tindal C. J.

(a) Cresswell J. having been counsel in the cause, declined giving any opinion. (b) The objection was one of a most formal character. If, however, the order was bad, ex quâcunque causâ, it would seem that the defendant was entitled at the trial to a verdict upon the second issue, that issue being taken in connection with the notice to dispute, -unless the plaintiffs elected to be nonsuited.

I cannot see what objection there can be to the course proposed, except on the part of Tiffin, who might not like to have the costs to which he is entitled, swallowed up by their being deducted from those of the plaintiff against the two other defendants.] Here, the defendants pleaded jointly, and appeared by the same attorney and counsel. In Hughes v. Chitty (2 M. & S. 172), where, on a joint plea of not guilty to trespass and assault, one defendant was found guilty, with 1s. damages, and 1s. costs, and the other was acquitted, it was held that the latter was only entitled to 40s. costs: Le Blanc J. and Dampier J. observing, "that if the defendants had pleaded separately it might have been different, but, as they had pleaded jointly, it would be making the plaintiff pay the costs of the other defendant, to allow increased costs to this defendant." Undoubtedly since then the rule has been laid down in Gambrell v. Earl Falmouth (5 A. & E. 403; 6 N. & M. 859), that a successful defendant is primâ facie entitled to his separate costs, and to his proportion of the joint costs. There, it was said by Lord Denman C. J. "We have considered the matter, and think ourselves bound by the rule laid down by Mr. Baron Bayley in Griffiths v. Kynaston (2 Tyrwh. 760), and afterwards confirmed in Griffiths v. Jones (5 Tyrwh. 1092; 2 Cr. M. & R. 333; 4 Dowl. P. C. 159), viz. that the successful defendant is to be allowed all his separate costs, and, primâ facie, an aliquot part of the joint costs, unless the master is satisfied that some smaller proportion should be allowed, by reason of any other special circumstances." Here, the special circumstances, on which the master seems to have decided, are, that the defendants had but one attorney and one counsel. In Gambrell v. Earl Falmouth, there were separate at-[246]-torneys and separate counsel. Here, the claim to deduct one third of the costs is made, not for Tiffin, but for the three defendants jointly. The two unsuccessful defendants would have been put to the same expense for the briefs, witnesses, &c., supposing Tiffin had not been included in the action. [Cresswell J. [Cresswell J. In case Tiffin had been the only defendant, the expense of the defence would have been the same, and the plaintiff would have had to pay the whole. You must look at it in both ways.]

TINDAL C. J. It seems to me that the correct rule is laid down by the court of Queen's Bench in Gambrell v. Earl Falmouth. Let it therefore be referred to the master to see if there are any special circumstances in this case to take it out of that rule; for if not, then Tiffin will be entitled to a deduction of one third of the costs of the joint defence.

The rest of the court concurred.

Rule absolute accordingly.

Bompas Serjt., who was to have supported the rule, referred also to Starling v. Cozens (5 Tyrwh. 823; 2 C. M. & R. 445; 3 Dowl. P. C. 782; Starving v. Cousins, 1 Gale, Exch. 159), Lees v. Reffitt (3 A. & E. 707; Lees v. Kendall, 5 N. & M. 340), and Bartholomew v. Stephens (5 M. & W. 386).

[247] PRYME v. BROWNE. May 7, 1842.

Upon an application to set aside a certificate for costs granted by the sheriff under the 3 & 4 Vict. c. 24, s. 2, on the ground that he at first refused to grant it, and afterwards gave it, out of deference to the wishes of others, the court will require the facts to be proved beyond all doubt.-The proper course in such a case, seems to be, for the party making the application to ascertain what occurred, from the sheriff himself.

This was an action for a libel published in the Cambridge Chronicle. The defendant having suffered judgment by default, a writ of inquiry was executed before the undersheriff of Middlesex, when the jury assessed the damages at a farthing. The undersheriff having certified that the "grievance in respect of which the action was brought was wilful and malicious," under the 3 & 4 Vict. c. 24, s. 2, in order to give the plaintiff his costs, the same were taxed and paid by the defendant under protest.

Channell Serjt., on a former day in this term, obtained a rule calling on the plaintiff to shew cause why the certificate, the taxation of costs, and the allocatur should not be set aside, and why the costs paid should not be repaid to the defendant, or to his attorney. The affidavits, on which the motion was grounded, stated, that on the verdict being returned, the plaintiffs counsel applied to the undersheriff to certify; when, after hearing the defendant's counsel, the undersheriff refused the

application, and the defendant's counsel indorsed his brief accordingly, and was in the act of leaving the court, when the plaintiff's counsel appealed to the undersheriff to alter his decision, suggesting that the jury, in finding the verdict they did, were evidently influenced by the belief that such verdict would carry costs; that the undersheriff immediately, and without reference to the defendant's counsel, turned to the jury and asked them if such had been their impression; that one of the jury réplying in the affirmative, the undersheriff ob-[248]-served that he was desirous of carrying out their view, and should therefore certify.

Bompas Serjt. now shewed cause upon affidavits, which stated that the certificate was granted within two or three minutes after the verdict was pronounced, some discussion having taken place as to whether or not the under-sheriff had power to certify; that the under-sheriff never did, in fact, refuse to certify, or appeal to the jury, as suggested in the affidavits on the other side; though it was admitted that the jury had intimated their understanding and intention that the verdict they gave should carry costs; and that the defendant had since been informed by the undersheriff that he did not at any time refuse to certify.

Channell Serjt., in support of the rule, submitted that the affidavits on the part of the defendant were not answered, as the counter-affidavits contained no distinct denial that the undersheriff had altered his decision in consequence of what fell from the jury.

TINDAL Č. J. Upon the affidavits the case is left in some degree of uncertainty, whereas, considering the nature of the application, the facts should have been placed beyond all doubt. The defendant, when about to make the present motion, should have applied to the undersheriff, and ascertained from him distinctly whether he had ever refused to grant the certificate. As the case now stands, I do not think that we ought to interfere.

COLTMAN J. The granting of the certificate was a matter entirely in the discretion of the undersheriff; and very strong evidence should be given before we set it aside.

[249] ERSKINE J. The ground on which the rule was granted was, that the undersheriff had exercised his own discretion, not in granting, but in refusing the certificate; and that he subsequently granted it only out of deference to the wishes of other parties. If that had been so, the court would have set the certificate aside, on the ground that he had not exercised his own judgment. But, according to the affidavits on the part of the plaintiff, the hesitation of the undersheriff proceeded, not from any doubt as to whether the certificate ought to be granted, but as to whether he had the power to give it. I think that a sufficient ground has not been laid for the court to interfere with the discretion of the presiding judge.

CRESSWELL J. concurred.

Rule discharged, with costs.

WILSON V. NISBETT. May 7, 1842.

Where upon a writ of trial the issue is delivered with blanks for the teste and return of the writ of trial, and the defendant retains it without making any objection, he cannot afterwards complain of the omission, even supposing the blanks in the issue to amount to an irregularity.-A notice of trial by continuance before the sheriff, need not specify the place or hour, as it will be taken to refer to the place and hour mentioned in the original notice.

Assumpsit, against the defendant, as the acceptor of a bill of exchange for 121. 12s., and on an account stated.

The defendant denied his acceptance of the bill of exchange; and, to the second count, pleaded non assumpsit; whereupon issue was joined.

The plaintiff's attorney having obtained an order to try the cause before the sheriff of Middlesex, on the 7th [250] of April 1842, delivered the issue in the form prescribed by the rules of H. T. 4 W. 4, the teste and return of the writ of trial being left in blank, as follows:

:-

"And fcrasmuch as the sum sought to be recovered in this suit, and indorsed on the said writ of summons, does not exceed 201., hereupon on the day

of

1842, pursuant to the statute in that case made and provided,