the plaintiff's assignees. Supposing that Mr. Gibson was 1843. not the assignee of the plaintiff under the second fiat, but OUCHTERLONY was a stranger, the case would be clear; the circumstances

of his holding that office, it was submitted, ought to make no difference.

Bompas and Manning, Serjts., in support of the rule. The right of Mr. Gibson to retain the books of the plaintiff as assignee under the second fiat could not be disputed. From the report of the former application in this suit, it appeared, that there had been an attempt by the defendant to plead other pleas besides those which went to trial. If the defendant had had time to plead, he might have set up the bankruptcy of the plaintiff, and so have defeated his claim, but, by the rapidity of the proceedings in the action, he was prevented from setting up such bankruptcy. It was admitted that down to the time of the fiat, the plaintiff's proceedings in the action had been regular, but it was contended, that after that time the proceedings had been unauthorized. The right of Mr. Gibson as assignee, related back to the date of the fiat, and the Court would not sanction this attempt on the part of the attorney, to procure from him the costs of proceedings which he had improperly taken. [Tindal, C. J.-The question really is one of costs. I think we had better look at the affidavits, to see who was wrong in causing those costs to be incurred.]

Cur. adv. vult.

TINDAL, C. J.-This was an action of trover for certain books and papers of the plaintiff, which had originally come to the hands of the defendant, as the official assignee under a fiat in bankruptcy issued against the plaintiff in the year 1840. This fiat was afterwards, with the consent of all the creditors who had proved their debts under it, annulled by order of the Lord Chancellor, bearing date the 10th of December, 1841; and immediately afterwards the

v.

GIBSON.

1843.

OUCHTERLONY

v.

GIBSON.

books and papers were demanded from the defendant, who refused to deliver them up to the plaintiff, and therefore this action was commenced on the 4th of January, 1842. On the 25th of January, 1842, a second fiat was issued against the plaintiff, upon the petition of John Vickery Broughton, who had not come in under the former fiat, and, on the 12th of the following May, the plaintiff was adjudged a bankrupt: and, on the 25th of May, the defendant was again appointed official assignee; but, in the meantime, namely, on the 23rd of February, this action had been tried, and, in consequence of the delay in opening the fiat occasioned by circumstances not material to the present inquiry, the defendant was not in a condition to plead the plaintiff's bankruptcy, and a verdict was, therefore, taken for the plaintiff, by consent, for 10007, the damages named in the declaration, subject to be reduced to 40s. on the delivery up to the plaintiff of the books and papers. The bankrupt having omitted to surrender himself under the second fiat, and, having gone abroad, notice was given by the assignees to the attorney, who had commenced and carried on the suit for the bankrupt, not to take any further proceedings in the action against the defendant Gibson, notwithstanding which notice, the attorney afterwards, on the 8th of July, 1842, entered an incipitur of the judgment in the master's book, and gave notice of taxing the plaintiff's costs: and, thereupon, the attorney for the defendant procured a Judge's order for staying all proceedings in the cause till the fifth day of Michaelmas Term, with leave to the parties to apply to the Court. In Michaelmas Term the defendant applied to this Court and obtained a rule, calling upon the plaintiff to shew cause why all proceedings on the postea should not be stayed, on payment to the plaintiff's attorney of the costs of this action up to the date of the second fiat in bankruptcy against the said plaintiff, or why the taxation of costs should not be stayed on the present judgment against the defendant, the same not having been revived, and the

assignees made parties to such judgment. This rule having been enlarged, cause was afterwards shewn against it, when it was insisted, on the part of the defendant, that as all the bankrupt's title to, and interest in the verdict, and cause of action, had become vested in his assignees under the second fiat, neither the bankrupt nor his attorney could take any further proceedings in the suit, without the consent and concurrence of the assignees, and that as the title of the assignees had not been completed till after the verdict, the defendant had had no opportunity of pleading the title of the assignees in bar to the plaintiff's further proceeding in the action, and, therefore, that he was by law entitled to his writ of audita querela, and consequently to the more summary relief which modern practice had substituted, by staying the proceedings on motion, in all cases were the defendant's title to the writ of audita querela was clear. The question was ably argued at the bar on both sides, and we delayed our decision, that we might ascertain from the affidavits, upon what terms it would be right, under all the circumstances of the case, to grant the summary relief applied for. Upon examination, it appears, as was indeed admitted at the bar, that there is no statement of any act of bankruptcy that would carry back the title of the assignees beyond the date of the fiat. There is nothing, therefore, to shew that the plaintiff had not originally a good cause of action, by the refusal of the defendant to deliver up the books, in which, even by relation, it does not now appear that he had at that time any property or interest, as assignee. The verdict, therefore, stands unimpeached by the subsequent proceedings. But as upon the 25th of May, when the assignees were appointed, the bankrupt's interest in that verdict was vested in his assignees, and as no judgment had been then signed in the cause, and as the plaintiff's attorney was expressly warned by the assignees against taking any further steps in the cause, we think that the attempt by the attorney to proceed to tax the costs and sign judgment, was a sufficient

1843.

OUCHTERLONY

v.

GIBSON.

1843.

OUCHTERLONY

v.

GIBSON.

ground for the present application; and the only doubt that we have entertained, has been as to the extent of costs which the defendant should be called upon to pay. He has, by his rules, offered to pay the costs up to the date of the fiat, which is more than the attorney would be able to recover, so long as the fiat remains in force, for, independently of any claim on the part of the defendant to the writ of audita querela, as to which it is not necessary to give any opinion, all control over the proceedings in the action being now vested in the assignees, unless the attorney could compel them to proceed to judgment and execution, he never could make his lien available, even to the amount now offered by the defendant; and his only remedy would be by proof under the fiat, for the costs incurred before the date of the fiat, and by action against the bankrupt for subsequent costs, if they were incurred by his authority. If indeed the creditors could, by the removal of the defendant Gibson, and the substitution of another assignee, be placed in a position to insist upon the assignees' proceeding to judgment and execution for the 1000l. for the benefit of the estate, the attorney might be enabled to work out his lien through the rights and interests of the creditors. But we think the assignees could not, under the circumstances of this case, be permitted to enter up judgment for more than the 40s., and as the attorney could have no claim upon the estate for the costs incurred after the date of the fiat, the creditors would have no interest in proceeding to judgment and execution for the 40s., except for the purpose of securing the estate from the proof of the bankrupt's debt to the attorney for the costs incurred prior to the date of the fiat and we think, also, that neither the bankrupt nor his attorney has any equitable claim to indemnity for the costs incurred by them, in forcing on the trial of this cause after the fiat was issued, and while its validity was under discussion. As the assignees, therefore, could not be called upon for the benefit of the estate to proceed to execution, except for the purpose of securing to the bankrupt's attorney the

payment of his costs up to the date of the fiat, from some other fund than the bankrupt's estate; and as the defendant proposes to afford that security, by paying those costs; and as we consider the prosecution of the action after the date of the fiat as an experiment of which the attorney voluntarily incurred the hazard, we think ample justice will be done to all parties by making the rule absolute for staying all further proceedings, upon payment by the defendant to the plaintiff's attorney of the costs incurred up to the date of the fiat, to be taxed by the Master.

Rule absolute accordingly.

1843.

OUCHTERLONY

v.

GIBSON.

defendant a

change for 1702. "for discounting

or return on demand." The defendant

THIS was an action of trover brought by the plaintiff The plaintiff being indebted to recover a bill of exchange for 170l., drawn by the to the defendplaintiff on Messrs. John Webber and Co.; pleas, first, ant, gave to the not guilty; and, secondly, not possessed. The action was bill of extried before Tindal, C. J., at Guildhall, at the adjourned sittings after Hilary Term, 1843, and it then appeared that the plaintiff was engaged in trade as a clothier at Leeds, and that the defendant also resided in the same transmitted the neighbourhood. The defendant applied to the plaintiff in London, difor payment of money due to him, whereupon the plaintiff he was satisfied recting him, if placed in his hands the bill of exchange, which formed the with the respectability of subject-matter of the action, drawn by himself upon Webber the acceptor, and Co., but not accepted. The defendant handed to the to put the bill plaintiff the following memorandum in return: "Received In trover for

bill to a broker

to his account.

the bill, the defendant

pleaded not guilty, and not possessed. At the trial, it was proved that the defendant had authority to apply the proceeds of the bill to his own use, but that if he could not get it discounted, he might return it to the plaintiff. The Judge directed the jury to decide whether the defendant had wrongfully converted the proceeds of the bill to his own use. The plaintiff objected to this direction, and elected to be nonsuited: Held, first, that the direction was not inconsistent with the state of the record, for that it was within the issue to inquire whether the defendant had acted within the scope of the authority given to him by the plaintiff: Held, secondly, that as the plaintiff had elected to be nonsuited, under such circumstances, the Court would not set aside the nonsuit, and direct a new trial.