v. Vickers (1 Chitt. R. 636, n.), and Fleming v. Davis (5 D. & R. 371), the parties were exempted from payment of costs, upon motion. [Tindal C. J. The rule in this case might be assimilated to those in the cases mentioned, if it should appear that the act in question was clearly done [615] in pursuance of the statute. Upon that point we will look into the act and the judge's notes; if it shall appear that the act was not of that nature, it is not a case in which the judge could certify, and then cadit quæstio; but if it appears that the act was done under the authority of the statute, we will then consider the form of the rule. I do not think, looking at the dates, that the application can be considered as out of time. Martin. In Baildon v. Pitter and Fleming v. Davis, it appears that the application was made before judgment.]

Cur. adv. vult.

TINDAL C. J. now said that the court had looked at the learned judge's notes, and that they thought the act complained of was not within the meaning of the police act, but was quite wide of it, and could not be said to be done "in pursuance of" that statute, or of any power given thereby; and that the rule to review the master's taxation must be discharged.

Rule discharged.

Bompas Serjt., in the following Michaelmas term, obtained a rule nisi to amend the above rule (discharging the rule to amend the master's taxation) by adding the words "with costs."

Humfrey shewed cause (a) upon the ground that the question being one of great doubt and difficulty, the court would not have given costs, even if they had been asked for, at the time.

Bompas Serjt. admitted that he had not asked for costs at the time the judgment had been pronounced, which was not done till some time after the case had been argued, [616] when he was not present. He submitted that the motion to review taxation related as much to a matter in the cause as a motion to enter a suggestion; which, if discharged, would certainly have been so with costs. This was an appeal from the judgment of the master, which, having been supported by the court, the party who succeeded was entitled to the costs of the application.

TINDAL C. J. The costs of a motion to review the master's taxation do not necessarily follow the general costs of the cause. The court will see whether there was any ground for the application. The question in this case turned upon a difficult and embrangled act of parliament, and the master might have been either right or wrong in his view of the matter. I think it was a proper case in which to apply to the court. The general rule is certainly as contended for by my brother Bompas: but I think that where a case turns upon the construction of an act of parliament it is competent to a party to come to the court and ask whether the construction is this way or that. Upon the whole-especially considering the lapse of time in this case --I think this rule must be discharged; but we will say nothing about costs. Per curiam. Rule to amend the former rule discharged.

[617] TANNER v. LEA AND OTHERS. June 9, 1842.

[S. C. 5 Scott, N. R. 237.]

The court, upon the application of the defendants, ordered the plaintiff's attorney to deliver his bill of costs, though upon the settlement of the action it had been expressly agreed between the attorneys of the respective parties, that, on certain accommodation being given to the defendants, the plaintiff's attorney should receive 601. as an ascertained amount of costs between attorney and client. The costs were directed to be taxed as between attorney and client.

Bompas Serjt. on a former day in this term, on behalf of the defendants, obtained a rule, calling upon the attorney for the plaintiff to shew cause why he should not deliver his bill of costs in the above cause.

It appeared from the affidavits on which the rule was obtained, that when the cause was at issue the proceedings were stayed under a judge's order, by consent, upon the defendants' undertaking to pay the debt and costs, to be taxed, within three weeks,

(a) Thursday, 24th November 1842.

or judgment. The debt and costs were paid, part of the payment being by a banker's draft at three months, which the plaintiff's attorney consented to receive in consideration of an agreed sum of 601. being paid to him for costs, without any bill being delivered. The attorneys for the defendants afterwards demanded a bill of costs, which demand had not been complied with.

Channell Serjt. now shewed cause, on affidavits, which stated that the sum of 601. had been expressly agreed upon between the attorneys on both sides, as the ascertained amount of costs between attorney and client. He submitted that this being a bargain between the parties, the court would not interfere.

Bompas Serjt. was heard in support of the rule.

TINDAL C. J. This appears to have been a bargain made for the benefit, not of the client, but of the attorney. And I do not see how we can refuse to interfere, when applied to for that purpose.

[618] MAULE and CRESSWELL JJ. expressed their concurrence; and the latter observed that as the defendants did not come to the court under any favourable circumstances, they ought not to have costs.

Per curiam; Rule absolute without costs; the costs in the cause to be taxed as between attorney and client.

GEIKIE AND ANOTHER v. HEWSON.

SAME v. MARTIN. June 11, 1842. [S. C. 5 Scott, 484.]

Pending an action of debt by A. against B., as acceptor of a bill for 4681. 1s. 9d., and for 15001. for goods sold and delivered, &c. A. filed an affidavit in the court of Bankruptcy under the 1 & 2 Vict. c. 110, s. 8, stating B. to be indebted to A. in 4681. 1s. 9d. for goods sold and delivered, &c., and also upon a bill for 4681. 1s. 9d. -Afterwards, on the 11th of February, B., with C. and D. as his sureties, gave a bond to A. conditioned for the payment of such sum as should be recovered in the action for the alleged debt, or for the render of B. On the 15th of March a fiat in bankruptcy was awarded against B. On the 21st of March A. signed judgment against B. for 13321. 19s. 6d. On the 5th of April A. proved under the fiat, for 8641. 12s. 9d., being the amount of the judgment debt excluding the 4681. 1s. 9d. On the 12th of April a ca. sa. against B. was lodged with the sheriff. On the 30th of May A. brought an action against C. and D. on the bond.-Held, that the proof under the fiat was an election to relinquish the action against B., and that B., being entitled to be discharged if rendered, C. and D). were entitled to have the proceedings stayed.

Sir Thomas Wilde Serjt. had obtained a rule nisi to stay the proceedings in these actions upon affidavits stating the following facts :

On the 1st February 1842 the plaintiffs, as drawers and payees of a bill of exchange for 4681. 1s. 9d., commenced an action of debt against James Gale and James Gale the younger, as the acceptors; the declaration contained also counts for goods sold and delivered, for [619] money paid, and on an account stated; the sum of 15001. being claimed in each of such counts. The plaintiffs subsequently filed an affidavit in the court of Bankruptcy, under the 1 & 2 Vict. c. 110, s. 8 (vide ante, vol. iii. 159, n.), stating that the Gales were indebted to them in 4681. 1s. 9d., for goods sold and delivered and money paid, and also upon a certain bill of exchange for 4681. 1s. 9d., drawn by the plaintiffs upon and accepted by the Gales, at four months' date. A copy of this affidavit, and a notice demanding immediate payment of the debt, were duly served upon the Gales. On the 11th of February the Gales (together with the defendants Hewson and Martin as their sureties), executed the bond required by the same section of the act, conditioned for the payment by the Gales to the plaintiffs, of the sum to be recovered in the action, with costs, or for their render after judgment recovered. On the 12th of February, a judge's order was made, by consent, in the action against the Gales,-that, upon payment of 13321. 19s. 6d., the amount of debt due, and the costs, to be paid by instalments, all further proceedings in that cause should be stayed; and that in case default should be made in any payment, the whole should become due, and the plaintiff's be at liberty to sign final judgment, and issue execution for the whole amount unpaid, with costs, &c. &c. A fiat in bankruptcy

having been awarded against the Gales, the plaintiffs, on the 21st of March, entered up judgment in the action against them, for 13321. 19s. 6d. ; and, on the 5th of April, they proved under the fiat a debt of 8641. 12s. 9d., alleging that they had received no security or satisfaction for the same, except certain bills of exchange accepted by the bankrupts, "and a certain judgment in an action against the said bankrupts, signed on the 21st of March last for the said [620] debt of 8641. 12s. 9d., and a certain bill of exchange not included in the above debt" (namely, the bill for 4681. 1s. 9d.). On the 12th of April, the plaintiffs lodged a ca. sa. with the sheriff in the action against the Gales; and, on the 30th of May, they commenced the present actions upon the bond against two of the sureties, to recover the amount of the last mentioned bill.

The rule nisi was obtained upon the ground that, as the plaintiffs had proved for part of the debt, they had elected to relinquish the action, and had thereby released the sureties; and that, these sureties being in the nature of bail, they might render their principals, and were therefore entitled to summary relief on motion.

The learned serjeant referred to the stat. 6 G. 4, c. 16, s. 59; Ex parte Glover (1 Glyn & Jam. 270) and Owston v. Coates (10 Ad. & E. 193, 2 P. & D. 485).

Storks Serjt. now shewed cause. The bond in question having been given in the court of Bankruptcy established by the 1 & 2 W. 4, c. 56, that court has an equitable jurisdiction as to the sureties, and has power to afford them relief; but it is submitted that this court has no jurisdiction in the matter. [Tindal C. J. No objection appears to have been made to the jurisdiction in Owston v. Coates.] The application in that case was merely to render the principal; not, as here, to stay the proceedings in an action against the sureties. Where a bankrupt is clearly entitled to his discharge, the court undoubtedly will relieve the bail on motion; Ray v. Hussey (Barnes, 104); Linging v. Comyn (2 Taunt. 246); Todd v. Maxfield (3 B. & C. 222; 5 D. & R. 258). But the present case is very different. Here, there is no render, no certificate, no discharge. The bail are fixed. [Tindal C. J. Have not the plaintiffs, [621] by proving under the fiat, elected to relinquish their action against the bankrupts, under 6 G. 4, c. 16, s. 59] Only, it is submitted, as to the debt proved. The proof under the fiat excluded the debt for which the bond was given. In Harley v. Greenwood (5 B. & Ald. 95) it was held that the election of the creditor to take the benefit of the commission was confined to the debt actually proved, and did not extend to distinct debts ejusdem generis due at the same time. Watson v. Meder (1 B. & Ald. 121) is to the same effect. [Sir T. Wilde Serjt. The result of the cases is, that where the action is brought first, there proof under the fiat discharges the action; where the proof is first, the debt proved is alone discharged. Tindal C. J. The question is, whether the judgment did not alter the nature of the debt. In this case the whole demand has become one entire judgment-debt. Is it then competent to the plaintiffs to separate that debt into two parts, and to prove under the fiat as to the one part and to proceed against the sureties for the other?] The debts are distinct in their nature, though they were included in the same action. There is nothing compulsory in the act. [Maule J. When a writ of capias ad satisfaciendum has lain four days in the office to fix the bail, can that be said to be a proceeding to which the term "action" properly applies? Tindal C. J. The plaintiff should not mix up the two questions together.] But at any rate, the present application is not the form in which the sureties are entitled to relief, even assuming that they stand in the situation of bail; Sanders v. Spincks (Barnes, 105). In Clarke v. Hoppe (3 Taunt. 46), where an action had been commenced, and the defendant afterwards became bankrupt, and then permitted judgment to be signed for want of a plea, the court would not relieve the bail on motion. There, the defendant had obtained his certificate.

[622] Sir T. Wilde Serjt., in support of the rule. In the present state of facts, it is clear that the sureties in this bond, being in the nature of bail, are not fixed; Tidd's Practice, p. 283 (9th ed.). The 1 & 2 Vict. c. 110, s. 8, requires the giving of a bond which is to have the effect of a recognisance of bail. The defendants were discharged as to the action, by the proof under the fiat after the action had been brought; Ex parte Dickson (1 Rose, 98); Ex parte Hardenbergh (ibid. 204); Ex parte Woolley (ibid. 394); Ex parte Glover (1 Glyn. & Jam. 270). In Watson v. Medex the proof was prior to the action. In Harley v. Greenwood the rule is laid down very clearly in the judgment of Holroyd J. The fifty-ninth section of the bankrupt act operates as a suspension of the proceedings in an action, defeasible in the event of the

fiat being afterwards superseded. If this had been the ordinary case of bail, the principal, when rendered, being entitled to his discharge, the court would give relief to the bail on motion. Now, by the eighth section of the 1 & 2 Vict. c. 110, the bond to be given to the creditor is in the terms of the old recognisance of bail, and is to become void upon the render of the principal, according to the practice of the court; and the court will not put the parties to the unnecessary trouble and expense of a render. [Maule J. Might not the bankrupt say, discharge me or expunge the debt?] Two cases only appear to have been decided upon the statute. Owston v. Coates is a distinct authority that the sureties in such a bond may discharge themselves by a render of the principal. But in this case, as the right of action against the principal is at least suspended by the proof under the fiat, the principal cannot be called upon to render; and the sureties have therefore a right to be relieved. In [623] Saunderson v. Parker (9 Dowl. P. C. 495) a ca. sa. was sued out to fix the bail; but, the principal being in custody, the ca. sa. was held to be unnecessary and irregular, and the ca. sa. was set aside and the proceedings on the bond were stayed. If the plaintiff is bound to relinquish his action, it is clear that the defendants, if rendered, would be discharged.

TINDAL C. J. I am of opinion that this application ought to be granted. It appears to me, that the sureties in this case stand in the same situation as parties who have entered into a recognizance of bail, where the plaintiff has proved under the bankruptcy of the principal. In such a case the first question would be, whether the bail would not continue liable to be fixed until something had been done to discharge their liability, after a ca. sa. had issued. Here, however, the ca. sa. itself appears to be irregular; for if the case falls within the 6 G. 4, c. 16, s. 59, the proof of the debt would operate as a suspension of the action (b). The point therefore comes to this— have the proceedings adopted by the plaintiffs that operation? And I am of opinion that they have.

The words of the act are very strong, that no creditor who has brought any action against any bankrupt in respect of a demand prior to the bankruptcy, or which might have been proved under the commission, shall prove a debt under such commission, or have any claim entered upon the proceedings, without relinquishing such action; and the proving or claiming a debt under a commission shall be deemed an election by the creditor to take the benefit of the commission with respect to the debt proved or claimed. Now, in [624] this case, the creditors have not only brought an action to recover a large sum, but have gone so far as to sign judgment for the whole amount. After doing this they have proved under the fiat for that which forms a component part of the entire sum. In Harley v. Greenwood the main question was, whether the action was brought before or after the proof of the debt. In the present case no such question arises. The sum for which judgment has been signed includes both causes of action, and the plaintiffs have proved under the fiat upon one of those causes of action only. But in Ex parte Glover it was held, that proof by a creditor for one debt operated as a relinquishment of an action previously brought in respect of a distinct demand. Here, the party has done more, because the debt proved formed a part of the debt for which the action was brought. The plaintiffs, therefore, could not have enforced the claim against the bankrupt; with regard to that portion of the debt for which judgment had been obtained, which related to the bill for 4681. 1s. 9d. Nor am I aware of any authority they had, to sever that judgment, and prove for one part and proceed to execution for the remainder. The two sums being united in the form of a judgment, cannot again be severed. To hold that the plaintiffs could recover against the sureties, would be directly contrary to the decision in Ex parte Glover. If bail would be entitled to relief in such a case, I cannot see why it should be refused to the sureties in this bond. As, therefore, in respect of these actions, the sureties would be entitled to relief if the bankrupts were rendered, they ought not to be driven to the expense of that circuitous course. For these reasons, therefore, I think that the proceedings against them should be stayed.

to

COLTMAN J. I am of the same opinion. The case falls precisely within the first portion of the fifty-ninth [625] section of the 6 G. 4, c. 16. The plaintiffs having

(b) A right of action, if suspended by operation of law, is not extinguished; if suspended by the act of the party, it is gone for ever. See 1 Roll. Abr. tit. Extinguishment, (L), (M); ante, 476 (c).

proved a debt under the fiat, have elected to relinquish their actions against the bankrupt. And their sureties under the eighth section of the 1 & 2 Vict. c. 110, being in the nature of bail, are clearly entitled to relief on summary application to the court, in which the action was brought. It was evidently the intention of the legislature, that the sureties in the bond described in that act should be entitled to discharge themselves upon rendering their principal. And the object of the present application is, to obtain relief under the equitable jurisdiction of the court. If we were to refuse to grant the application, the effect would be that the principals must be rendered, whereby the sureties would be discharged. But that would be a great hardship upon the bankrupts, as they would have a right to be immediately discharged out of custody. I think therefore that, as in the case of recognizance of bail, we ought at once to grant the relief; and that the rule must be made absolute to stay the proceedings against the sureties.

MAULE J. I also am of opinion, that the obligors in this case, who are in the nature of bail, should have this summary relief. The meaning of "relinquishing such action or suit," in the first branch of the fifty-ninth section of the 6 G. 4, c. 16, is explained by the subsequent part of the clause to be "proceeding no further in the action." I had some doubt at first, whether this application should not have been made to the court of Review instead of being made to this court. But, upon consideration, I think that the authority is properly exercised by the court in which the action is brought, since the act of parliament is silent as to the court which is to have jurisdiction over the subject. The court in which this action is brought, has therefore no right to withdraw from the duty im-[626]-pliedly imposed upon it, and I think we are bound to administer the relief which the statute has provided. The action is not determined. The effect of the application is, that the sureties are not to be called upon to render their principals, until after the fiat is superseded, if that event shall ever happen.

Cresswell J. concurred.

Rule absolute (a).

DAVIDSON, one of the Public Officers of the Commercial Bank of England

v. BOWER. June 4, 1842.

The declaration described the plaintiff as one of the public officers of certain persons united in co-partnership for the purpose of carrying on the trade or business of bankers in England, according to the 7 G. 4, c. 46. The declaration contained a count for work and labour done by the co-partnership as the bankers of the defendant, and for commission due in respect thereof :-Held, on motion in arrest of judgment, that, looking at the whole record, it sufficiently appeared that the co-partnership were carrying on business as bankers under the statute.

Assumpsit. The declaration commenced as follows: "Alexander Davidson, one of the present public officers of certain persons united in co-partnership for the purpose of carrying on the trade or business of bankers in England, according to the statute made and passed in the seventh year of the reign of His late Majesty George the Fourth, intituled 'An act for the better regulating co-partnerships of certain bankers in England, and for amending so much of an act of the thirty-ninth and fortieth years of the reign of His late Majesty King George the Third, intituled An act for establishing an agreement with the Governor and Company of the Bank of England, for advancing the sum of 3,000,000l. towards the supply for the service of the [627] year 1800, as relates to the same,' and called the Commercial Bank of England, which Alexander Davidson hath been duly nominated and appointed, and now is, one of the public officers of the said co-partnership, according to the force, form, and effect of the said act of parliament, complains" &c. The declaration then proceeded in the usual form of an indebitatus assumpsit for money lent, for money paid, for the price and value of divers shares in divers public companies bargained and sold by the co-partnership to the defendant,-for work and labour, care, diligence, and attendance of the co-partnership, done, performed, and bestowed as the bankers of and for the defendant at his request, and for commission and reward due and of right payable

C. P. XII.-9

(a) See Kymer v. Sydserf, post, 636.