Pleas: First, except as to 301. parcel, &c. never indebted. Secondly, as to the third count, except as to 301., that the account was stated concerning moneys exceeding 101. lost at gaming, contrary to the statute, &c. Thirdly, as to the third, fourth, and fifth counts, except as to 301., that the statement of the accounts was obtained by fraud. Fourthly and fifth, to the fourth and fifth counts respectively, the same as the second plea. Sixthly, as to the 301. payment into court. Issue was joined upon the first five pleas, and as to the sixth plea, the plaintiff took the 301. out of court in full satisfaction of all the causes of action as to the said 301. parcel, &c.

The plaintiff's attorney at the time of delivering the issues also delivered his bill of costs comprising the whole costs of the suit, including that of the replication, with a notice of taxation on the following day. The costs were taxed accordingly, no one attending on the part of the defendant. A summons was subsequently [908] taken out, calling upon the plaintiff to shew cause at chambers, why the master's allocatur should not be set aside, or why the taxation should not be reviewed, or why all proceedings on the allocatur should not be stayed till after the trial of the issues. Cresswell J., before whom the parties attended in pursuance of the summons, refused to make any order, but gave two days' time to the defendant to apply to the court.

Bompas Serjt. on a former day in this term, had obtained a rule nisi, accordingly, in the terms of the summons.

Channell Serjt. now shewed cause. The question is, whether in this stage of the cause the plaintiff is entitled to what may be termed an interlocutory taxation of his costs. It is submitted that he is so under the rule of Trinity Term, 1 Vict.(a); by which it is ordered, that "the plaintiff, after delivery of a plea of payment of money into court, shall be at liberty to reply to the same by accepting the sum so paid into court in full satisfaction and discharge of the cause of action, in respect of which it has been paid in; and he shall be at liberty, in that case, to tax his costs of suit, and in case of nonpayment thereof within forty-eight hours, to sign judgment for his costs so taxed; or the plaintiff may reply, 'that he has sustained damages,' (or, 'that the defendant was, and is indebted to him,' as the case may be,) 'to a greater amount than the said sum;' and in the event of an issue thereon being found for the defendant, the defendant shall be entitled to judgment and his costs of suit." The present case falls clearly within the first branch of this rule, which branch has no necessary connection with the latter. If the parties go on to trial, and [909] the defendant should succeed upon the issues, he will then have his remedy for his costs; but the plaintiff seems to be entitled to his costs up to the present time. [Maule J. This appears like the case of a tender as to part of the demand; in which case, if the plaintiff takes the money out of court, and yet goes on to trial, he has never been considered as entitled to his costs until the trial is at an end.]

TINDAL C. J. I think the meaning of the rule must be that the plaintiff shall be entitled to tax his costs only where the money is accepted in satisfaction of the whole demand; and not where there are other issues upon which the parties are proceeding to trial.

Per curiam. Rule absolute.

HAMLET v. BREEDON AND SIX OTHERS. Nov. 25, 1842.

In trespass against several defendants, one defendant, who alone has demanded a declaration, which has not been delivered, is not entitled to sign judgment of non pros. for all the defendants.

The writ of summons

This was an action of trespass against seven defendants. issued on the 15th of June 1841; all the defendants were served by the 24th of that month, and appearances were entered for them by the 28th. No further steps were taken till the 3d of June in this year, when a declaration was demanded on behalf of the defendant Breedon, who had appeared by a separate attorney. On the 8th the plaintiff obtained an order for four days' time to declare against Breedon; and on the 13th obtained a rule for further time until the first day of this term. On the 7th of November, judgment of non pros. was signed, on behalf of all the defendants, by the attorney who appeared for Breedon.

(a) Substituted for the 19th rule (Pleading) H. T. 4 Will. 4.

[910] Sir T. Wilde Serjt., on a former day in this term, upon an affidavit of the foregoing facts, had obtained a rule nisi to set aside the judgment of non pros. for irregularity, on the ground that as there had been a demand of declaration on the part of one defendant alone, the plaintiff was only in default in respect of that particular defendant, and that such default did not authorise a judgment of non pros. ou behalf of all the defendants.

The

Bompas Serjt. now shewed cause. The judgment was perfectly regular. The rule is thus laid down in Archbold's Practice (page 892, 4th edit.). If the action lie against several defendants, the plaintiffs may be non-prossed by any one, if all have appeared; but if all have not appeared, then those, or any of those, who have appeared, cannot non-pros the plaintiff, even in trespass.' In Philpot v. Muller (1 Dougl. 169, n.) Buller J. said there was a difference between a nolle prosequi, and a judgment of non pros.; for that by the latter, the plaintiff is put out of court as to all the defendants. The judgment of non pros. must be signed for all the defendants; Pryce v. Foulkes (4 Burr. 2418). In that case there being seven defendants, they signed seven distinct judgments of non pros. which were set aside as irregular (see also Powell v. White, 1 Dougl. 169). [Maule J. objection here is, that all the defendants were not entitled to non-pros the plaintiff. If they had been so entitled, perhaps one might have signed judgment for all. There has only been a demand of declaration by one defendant; the plaintiff may still declare against the others.] It is submitted that upon the authorities the defendants cannot sign several judgments of non pros. [Maule J. That [911] must be where they are all entitled to judgment, and choose to avail themselves of their right. In Archbold's Practice, it is further said, after the rule that has been cited, "unless the plaintiff have actually declared against some of them, or have taken out a rule for time to declare against some of them, in which case the others may sign judgment of non pros."] Roe v. Cock (2 T. R. 257) is cited as an authority for that position. There the plaintiff had joined two persons in a latitat, and had sued one only and it was held that the other might sign judgment of non pros. The plaintiff had, in effect, severed the action, and it was the same as if he had brought two separate actions. Here, the action is joint. The latitat was not properly the commencement of the action, as the writ of summons now is. It was a mere process to bring the parties into court; and bringing two parties jointly into court, would not be the same as jointly suing them. [Maule J. Upon Breedon alone demanding a declaration, might not the plaintiff have declared against him alone?] Having joined all the defendants in the same writ, he could not proceed against one only. He might have declared against them all, notwithstanding the demand for a declaration was by one only. [Tindal C. J. The real difficulty appears to be this. One defendant out of seven has signed a general judgment of non pros. when the other six were not entitled to it. What authority had he to put the other defendants in a different position] The argument is, that he was entitled to sign for all. [Tindal C. J. In the cases referred to it appears that all the defendants had the right. The right of one appears to be coupled with a condition-that the others are entitled.] If all the defendants have appeared they are all entitled. [Maule J. Suppose all have appeared, and one of them [912] wants to non-pros the plaintiff, and the others want to go on with the action, could the one in that case sign for all?] It is submitted that he could. If one defendant sign non pros. in one week, and another in another, that would be bad. [Maule J. If there can be only one judgment of non pros. that would be so.] There is no difference in this respect between a nonsuit and a non pros. One defendant may have a nonsuit as to all. In Allington v. Vavasor (2 Salk. 455) it was held that in trespass against four, there can be but one nonsuit for want of declaring. It is there called a nonsuit instead of a non pros.(b). In Murphy v. Donlan (5 B. & C. 178. Murphy v. Tomlan, 7 D. & R. 619) it was held, that after judgment by default against one of two defendants, the plaintiff upon the trial of an issue by the other defendant, might elect to be nonsuited. [Maule J. That is, as to the defendant who had pleaded. Abbott C. J. there expressly says, "there is no

(b) Non pros. (non prosecutus est breve), is the law Latin term, and nousuit the law French term, to denote that the plaintiff has made default in prosecuting his action. The latter term is now used with reference merely to such an abandonment taking place at the trial; but this is a modern distinction.

inconsistency in allowing a plaintiff to be nonsuited, as to the defendant who has pleaded, although the other defendant may have suffered judgment by default." Tindal C. J. It is a nonsuit quâ the one who goes before the jury. If there can be a nonsuit as to

one defendant, why should there not be a non pros. also? Erskine J. Murphy v. Donlan was a case ex contractu. Maule J. There are cases in which an action lies against one only, or against several. There are others where the action must be brought against several. In the former, if more than one defendant are joined in the action, why should there not be a nonsuit or non pros. as to one, and the case proceed as to the others?]

In Palmer v. Feistel (2 Dowl. P. C. 507) it was held, that in an action against several defendants, a judgment of non pros. can-[913]-not be signed until all have appeared. A plaintiff cannot now include four persons in a writ of summons, and sue only two. [Tindal C. J. Is that so? Coltman J. By the rule M. T. 3 W. 4, No. 1, it is ordered "that every writ of summons, &c. shall contain the names of all the defendants, if more than one, in the action, and shall not contain the name or names of any defendant or defendants in more actions than one." But it does not state that a plaintiff shall not declare against fewer than he has summoned. Erskine J. Suppose a summons against three, and an appearance by all, and a declaration against two only, would the third be entitled to sign a judgment of non pros. as to all?] Probably he would. But the whole proceedings would be irregular. A discontinuance as to one would clearly be a discontinuance as to all. One defendant cannot demand a declaration and sign a judgment of non pros. and then another defendant make a separate demand and separately non pros. After the demand of declaration by one the plaintiff is bound to deliver the declaration against all. [Tindal C. J. The argument would be as strong if some of the defendants had not appeared.] There cannot be a non pros. until all have appeared. [Tindal C. J. The plaintiff need not declare till there has been a demand of declaration.] There has been a demand here by one defendant who is sued jointly with others. Coldwell v. Blake (a)1 may be relied upon on the other side. That case is not very intelligible. It is stated that a motion was made to set aside the declaration for irregularity, and that the only process against the defendant was against two, of whom the defendant was one (b)i. It was contended that the [914] declaration ought to correspond with the writ, and the rule of M. T. 3 W. 4 (which has been cited by the court in this case) was referred to. And Lord Abinger C. B. said: "Your objection at present is too early. You will be in time when the plaintiff has declared against the other" (a)2. [Tindal C. J. The learned judge meant that there was no irregularity at that time, and that the defendant should wait to see if the plaintiff declared against the other defendant in another action, and then there would have been an irregularity (b)2. The learned serjeant also referred to Knowles v. Johnson (2 Dowl. P. C. 653).

TINDAL C. J. If any distinct authority or precedent had been shewn that where one of several defendants was in a condition to non pros. the plaintiff, and the rest were not, the one might sign judgment for all, we must have yielded to it. But no case or reason has been adduced to shew that one defendant may put the others in a situation in which they could not place themselves. Murphy v. Donlan shews that a plaintiff may be nonsuited with respect to one defendant only; and I am unable to see why a defendant who has alone demanded a declaration should not be allowed to sign judgment of non pros. as against himself only. I am of opinion, therefore, that the present judgment is irregular, and must be set aside.

COLTMAN J. I am of the same opinion. If it could have been shewn that, where there was a writ of summons against several defendants, the plaintiff could not declare against some of them only, I should have thought the argument on the part of the defendants in this case would have been entitled to great consideration. [915] But the cases, as well as the language of the rule which has been referred to, shew that such is not the law. And I see no reason why a non pros. as to one of several

(a) 3 Dowl. P. C. 656. S. C. per nom. Caldwell v. Blake, 2 C. M. & R. 249, 3 Tyrwh. 618.

("It appeared that the writ of summons was against two, whereas the declaration was against one only;" 2 C. M. & R. 249.

(a) See Palmer v. Beale, 9 Dowl. P. C. 529.

(b)2 See Pepper v. Whalley, 1 N. C. 71.

defendants should enure so as to put the case out of court as to all the rest. I think, therefore, the judgment in this case was irregularly signed.

ERSKINE J. Before the rule of M. T. 3 W. 4, a plaintiff might have issued a writ against four parties, and might have proceeded in one action against two of them, and in another against the other two; or he might have issued different writs against several defendants in the same action. But this has been altered by the rule in question. That rule however does not say that the writ of summons must be against all the defendants and no one else. And that explains the expression of Lord Abinger in Coldwell v. Blake. The practice in this respect is left as it was before the new rule, that a plaintiff may issue the writ against several, and may declare against some of them only. No authority has been cited to shew that, where one defendant is in a condition to non pros. the plaintiff, and the others are not, the one may not sign judgment as regards himself. I think he may do so; but not as regards the other defendants.

MAULE J. I also think this rule must be made absolute on the ground that one defendant is not entitled to sign a judgment of non pros. for all the other defendants, who are not themselves in a situation to non pros. the plaintiff. The plaintiff in this case is not bound, as the proceedings stand at present, to go on against all the defendants. One defendant has a just ground of complaint, inasmuch as having called upon the plaintiff to proceed against him, the plaintiff has not done so. That right of complaint is satisfied by his power to enter [916] a non pros. as regards himself. It is said the judgment must be as to all, even though the others are not in a situation to call for it. But there is no default on the part of the plaintiff except as against one, and he may take advantage of it. Suppose the others wished the cause to go on; it would be very strange that the plaintiff should be non-prossed as to those with respect to whom there had been no default.

Rule absolute.

JOHNSON AND ANOTHER, Assignees of Ridgway, a Bankrupt, v. SHAW.
Nov. 25, 1842.

[S. C. 12 L. J. C. P. 112.]

A. consigned goods to B., a factor, who sold them to C. B. having become bankrupt, his assignees sued C. for the price of the goods, which were also claimed by A. Held, that C. was entitled to the benefit of the interpleader act.

This was an action for goods sold and delivered by Ridgway before his bankruptcy. The goods were also claimed by one Renter, who had consigned them to Ridgway, as his factor.

Talfourd Serjt., on behalf of the defendant, having obtained a rule under the first section of the interpleader act (1 & 2 W. 4, c. 58).

Sir Thomas Wilde Serjt. now appeared for Renter, and contended that his client, as consignor of the goods to a factor, had a right to follow them; for never having been the property of the bankrupt, they would not pass to his assignees.

Channell Serjt., for the plaintiffs, argued that it was doubtful, upon the authority of James v. Pritchard (8 Dowl. P. C. 890), whether this case was within the interpleader act. The [917] plaintiff in that case having sold to the defendant a rick of hay belonging to a deceased person, and S. having afterwards taken out administration and claimed the price of the hay, it was held that the defendant could not be relieved under the act. Here, if the bankrupt had been the plaintiff and had sued the defendant, and Renter had put in his claim, the defendant would not have been entitled to an interpleader rule. [Tindal C. J. The whole question arises in consequence of the representative character of the plaintiffs.] In the case referred to the party claimed in a representative character. [Erskine J. In that case the plaintiff was seeking to enforce a contract made with himself; here, the contract was made with another party.]

TINDAL C. J. I think there should be an issue between the assignees and Renter to try whether at the time of the bankruptcy the latter was entitled to the goods or any part thereof.

Per curiam. Rule accordingly.

[918] WOOD v. HEATH. Nov. 25, 1842.

A gaoler has no right to apply for the discharge of a debtor in execution, under the stat. 48 G. 3, c. 123. Such an application can only be made on behalf of the debtor himself.

Channell Serjt. on a former day in this term had obtained a rule calling upon the plaintiff to shew cause why the defendant should not be discharged out of the custody of the marshal of the Queen's prison; the defendant having lain in prison twelve calendar months, next before the making the application, in execution on a judgment at the plaintiff's suit for a debt not exceeding 201. The application was made under the statute 48 G. 3, c. 123, s. 1 (a), on behalf of the marshal.

[919] Dowling Serjt. now shewed cause. The application under the 48 G. 3, c. 123, can only be made on behalf of the prisoner. The words of the statute are express upon this point. There is no compulsory power either in that act or in the 1 & 2 Vict. c. 110, or in the act for consolidating prisons, 5 & 6 Vict. c. 22, by which a prisoner can be compelled to seek his discharge. The defendant is not even made a party to the present rule, which was served upon the plaintiff alone.

Channell Serjt. in support of the rule. It must be admitted that in all former cases the application for a discharge under the 48 G. 3, c. 123, appears to have been made on behalf of the defendant. But there seems no reason why it should not be

(a) "Whereas it might tend greatly to the relief of certain debtors in execution for small debts, and at the same time occasion no material prejudice to trade and public credit, if such debtors should, after a limited period of imprisonment, be allowed the benefit of a discharge therefrom, the creditors, at whose suit they were so in execution, being at the same time authorised to take out other writs of execution against the land and goods of such debtors, or to use other remedy for the satisfaction of their debts, as if the persons of such debtors had never been taken in execution; be it enacted, that from and after the passing of this act, all persons in execution upon any judgment, in whatsoever court the same may have been obtained, and whether such court be or be not a court of record for any debt or damages not exceeding the sum of 201., exclusive of the costs recovered by such judgment, and who shall have lain in prison thereupon for the space of twelve successive calendar months next before the time of their application to be discharged, as hereinafter mentioned, shall and may, upon his, her, or their application for that purpose in term time, made to some one of His Majesty's superior courts of record at Westminster, to the satisfaction of such court, be forthwith discharged out of custody, as to such execution, by the rule or order of such court," &c. "Provided always, that for and notwithstanding the discharge of any debtor or debtors by virtue of this act, the judgment whereupon any such debtor or debtors was or were taken, or charged in execution, shall nevertheless continue and remain in full force to all intents and purposes, except as to the taking in execution the person or persons of such debtor or debtors thereupon, as is hereinafter provided; and that it shall and may be lawful for the creditor or creditors, at whose suit such debtor or debtors has been, was, or were so taken or charged in execution to take out all such execution or executions on every such judgment against the lands, tenements, hereditaments, goods, and chattels of any such debtor or debtors (other than and except the necessary wearing apparel, &c.), or to bring any such action or any such judgment against such debtor or debtors respectively, or to bring any such action, or use any such remedy for the recovery and satisfaction of his, her, or their demand, against any other person or persons liable to satisfy the same in such and the same manner, but in such and the same manner only, as such creditor or creditors otherwise could or might have done in case such debtor or debtors had never been taken or charged in execution upon such judgment: Provided always, that no debtor or debtors who shall be duly discharged in pursuance of this act, shall at any time afterwards be taken or charged in execution upon any judgment herein so as before declared, to continue and remain in full force, nor be arrested in any action to be brought on any such judgment; and that no proceeding whatsoever by scire facias, action, or otherwise, shall be maintained or had against the bail in action upon the judgment, wherein the defendant or defendants shall have been charged in execution, and afterwards discharged by virtue of the provisions of this act."

any