STEWARD, Public Officer, &c., v. DUNN, Public Officer, &c, Exch. of Pleas, 1843. Jan. 27. In an action public officer of a banking co against the partnership, the bankruptcy, on to sue out exe THIS was an action of debt, brought by the "East of England Bank" in the name of their public officer, against the Southern District Banking Company, sued in the name of one of their public officers, who was also a share- Court set aside a plea of the holder in the Company. The declaration contained counts defendant's for money lent, money paid, money had and received, the plaintiff's interest, work and labour and attendance, and money due undertaking not on an account stated. Rolfe, B., made an order allowing cution personally against the the defendant to plead the following pleas :-First, nun- defendant, his quam indebitatus; secondly, payment; thirdly, a set-off; lands, or goods. fourthly, that the plaintiff was not public officer as alleged in the declaration; fifthly, that the defendant was not public officer as alleged; sixthly, that there was no such co-partnership as that secondly mentioned in the declaration; seventhly, that the co-partnership secondly mentioned did not carry on business as therein alleged; and lastly, a judgment recovered. The learned Judge also directed a stay of proceedings, in order to give the defendant an opportunity of applying to the Court for leave to amend the order, by adding a plea of the defendant's bankruptcy. Kelly having obtained a rule nisi accordingly, Erle and Butt now shewed cause.-The proposed plea ought not to be allowed; for the bankruptcy of the defendant in his private capacity can be no defence to an action against him, when sued as the public officer of the company. Wood v. Marston (a) (where a similar plea had been pleaded, and an application was made to strike it out) is precisely in point. Lord Abinger, C. B., who delivered the judgment of the Court, there said-"The pleas (a) 7 Dowl. P. C. 865. Ezch. of Pleas, may be struck out, if the plaintiff will undertake, on ob 1843. STEWARD v. DUNN. taining a judgment against the defendant, not to take out execution against him or his individual estate, but against the members of the company only." The same arrangement was offered before the learned Judge in the present case. By the 7 Geo. 4, c. 46, s. 12, judgments obtained against the public officer of a banking co-partnership are to operate against the property of the co-partnership, and of every member thereof; and it is provided, "that the bankruptcy, insolvency, or stopping payment of any such public officer for the time being of such co-partnership, in his individual character or capacity, shall not be nor be construed to be the bankruptcy, insolvency, or stopping payment of such co-partnership." It may be said on the other side, that inasmuch as, in the event of the defendant's becoming hereafter entitled to landed property, the judgment would be a charge upon the land, he is therefore entitled to plead his bankruptcy, and is not bound to accept the undertaking offered. But that is not so, for this is an action brought against him, not in his individual character, but as public officer; and that by compulsion, since it is now established that the creditors cannot proceed against the individual members of the co-partnership, but must sue the public officer: Steward v. Greaves (a). The plea of bankruptcy would be a plea alleging as a defence to the whole action that which clearly does not constitute any defence to the whole action. If, however, the defendant is desirous of having the validity of the plea hereafter considered on demurrer, he ought to plead it alone. But this being an action against several persons, how can a plea of the bankruptcy of one possibly be any answer? The Court will therefore, in the exercise of their discretion, disallow this plea, at all events on the terms offered by the plaintiff. (a) 10 M. & W. 711. 1843. STEWARD v. DUNN. Kelly and Ogle, contrà.-Wood v. Marston is no authority Exch. of Pleas, against the defendant. The Court, in that case, merely threw out a suggestion that the plea should be abandoned on the plaintiff's undertaking not to sue out execution against the defendant; that suggestion was adopted, and the plea was struck out by arrangement between the parties, and not under any judgment of the Court. Bankruptcy is a legal defence, expressly given by statute, of which a defendant has as clear a right to avail himself as of the statute of limitations, or any other statutable defence. [Lord Abinger, C. B.—But here he is sued as a trustee.] So far as regards the rest of the company, no doubt he is; and if the plea, being pleaded to the whole action, forms no defence as to them, it may be questioned by a demurrer: but he is sued as well in his own person as in his capacity of public officer. The undertaking not to issue execution against him will not be a sufficient protection, since the judgment will stand as a charge upon his lands, and of course seriously affect the conveyance of them. [Parke, B.-The undertaking not to issue execution will prevent the judgment from operating against the lands; they can be affected only by means of an elegit, which is an execution.] The only leave that was asked of the learned Judge was to plead a plea of bankruptcy; it would be matter for subsequent consideration whether it should be in the usual form. [Parke, B.-We must assume that you asked for it as a plea in bar of the whole action.] The Court will perhaps mould the rule, and allow the defendant to add some plea whereby he may effectually protect himself. Lord ABINGER, C. B.-The Court will not allow a party sued as a public officer to plead a great number of pleas, and also to add a plea of his own personal bankruptcy, in bar of an action in which he is sued merely as the representative of the company. The plea suggested would be VOL. XI. F M. W. 1843. STEWARD V. DUNN. Erch of Pleas, plainly bad, inasmuch as the action is, on the face of it, against the co-partnership, and the defendant is a mere parliamentary defendant; it is impossible that his bankruptcy can be a good plea to the whole action. The act of Parliament makes him the sole defendant, as the representative, perhaps, of several hundreds; and if he is at liberty to plead a matter merely personal to himself in bar of such an action, he confers the benefit of that defence on all those whom he represents as defendant; a benefit which certainly the legislature never intended they should have. The question at present is, whether the order of my Brother Rolfe shall be amended; and we are all of opinion that he was quite right in rejecting this plea of bankruptcy. The rule will therefore be discharged with costs, the plaintiff undertaking not to issue execution against the person, lands, or goods of the defendant individually. PARKE, B.-If the defendant had come before the learned Judge with a plea framed specially to exempt the defendant personally from execution, for instance, a special plea of exemption, in analogy to the old form of proceeding when a party had become bankrupt a second time, and had not paid 158. in the pound under the second commission, the learned Judge would have exercised his opinion upon it, and possibly, though I do not say positively how that would be, he might have allowed such a plea. But he was quite right in refusing to allow a general plea of bankruptcy, because it is clearly no bar to this action, and we ought not, in exercising our discretion under the statute of Anne, to allow a bad plea to be placed on the record. The undertaking, however, which is offered on the part of the plaintiff, places the matter on a very reasonable footing. ALDERSON, B., and ROLFE, B., concurred. Rule discharged with costs, the company undertaking not to take out execution against the defendant or his individual estate. BROOKER V. Scott. ASSUMPSIT for goods sold and delivered. The defend- S. d. 6 0 4 Feb. 17. Soda water and acidulated drops 1 Mar. 22. Lozenges April 13. Oranges, jelly, biscuits, and pastry 2 9 At the trial, it was objected that none of these articles could be considered necessaries, and therefore that the defendant was entitled to a nonsuit. The undersheriff reserved the point, and the plaintiff had a verdict, damages 71. Os. 7d. Byles having obtained a rule nisi to enter a nonsuit pursuant to the leave reserved, Humfrey now shewed cause.-There was some evidence for the jury, as to some of the items of this bill, that they were articles reasonably necessary for a person in the condition and station of life of the defendant; and if that were so, the undersheriff could not have nonsuited. Such is the rule laid down in Peters v. Fleming (a). [Parke, B. (a) 6 M. & W. 43. Exch. of Pleas, 1843. Jan. 27. Dinners, con fectionery, or fruit, supplied to an infant, an undergraduate in the university, having lodgings in the primâ facie, town, are not, necessaries: and in an ac tion brought against him for such articles, no special circumstances being shewn, the Court directed a nonsuit to be entered. |