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but not in that clause; and, as it was said by Lord Eldon,
1828. in whose judgment we entirely concur, it will not be found,
MALTBY on an attentive perusal of the deed, that any bills of exchange are stated as intended to be given up, except those Carstairs. which constituted the debts due and owing by Easterby and Co., of which description were the bills for 18,0001. Nothing is said of any bills of the description of those accepted by Slade and Lewis. There is nothing express to prevent the holders of such bills from availing themselves of them, although by so doing a remote and circuitous charge might eventually arise against Easterby & Co. Slade's bills were the subject of the case before Lord Eldon. They are not distinguishable from Lewis's bill, mentioned in the present case; and his lordship’s judgment is, therefore, a direct authority in favour of the defendants as to that part of the case. In principle, also, it is an authority in their favour on the other parts of the case; for if the collateral security of a bill of exchange was not lost by the operation of the deed, and by the giving up of other bills, for the payment of which it was a security, neither would this other security be lost by the operation of the deed. There can be no difference in principle between the one and the other. It may not be unreasonable to presume that many of the creditors of Easterby and Co., who were willing to give up bills of exchange, and to release them, if they were allowed to retain their collateral securities, would have refused to do so if they had not been allowed to retain such securities. Any attempt to deal with such securities would probably have been found impracticable, and would have defeated the whole scheme of arrangement, which the parties most probably were sanguine enough to think likely to provide a fund sufficient in the end to meet all demands, present and contingent. The assignees of Ellill may well be supposed to have been content with the chance of reimbursement of such sum as Kensington and Co. might obtain, by reason of their collateral securities, out of the secondary fund, on the final settlement of the accounts between them and Easterby and Co.; and to have preferred an arrangement which left in
the hands of Kensington and Co. 'the collateral securities only, to the then existing state of things which gave
them not only those collateral securities, but also the right of proof and dividend for a further sum. For these reasons we are of opinion that the plaintiffs are not entitled to recover, and, therefore, that judgment of nonsuit must be entered.
Judgment of nonsuit (a).
(a) In general, a creditor who by any contract which can be enforced against him (Mann. N. P. Digest, Assumpsit, pl. 1; Surety, pl. 1; Variance, pl. 42,) at law or in equity, gives time to his debtor, discharges the surety; for if, notwithstanding such contract, it were competent to the creditor to sue the surety, the latter would immediately have his remedy over against the debtor; this would be in
fraud of the contract of forbearance, which the creditor would thereby indirectly defeat; but where the debtor assents to the reservation of the right to resort to the surety, he cannot complain: he has not obtained an absolute discharge, for which he never contracted. And see Boultbee v. Stubbs, 18 Ves. 21; Bank of Ireland v. Beresford, 5 Dow, 234.
STRUTTON v. Whitwell.
cannot enter a
The plaintiff had brought an action of assumpsit against ment by default and writ the defendant, in which the latter bad suffered judgment to of inquiry executed, the
go by default, and upon the execution of the writ of defendant inquiry the jury assessed the damages under forty shillings. suggestion un
Hill moved for a rule nisi for entering a suggestion on der the Middlesex County the roll pursuant to the Middlesex County Court Act, Court Act, 23 Geo. 2, c. 33,
23 Geo. 2, c. 33, s. 19 (6), to deprive the plaintiff of costs. to deprive the It has undoubtedly been held in one case of Harris v. plaintiff of
Lloyd (c), that the defendant is not entitled to the benefit
(6) Which enacts that any shillings, unless the judge shall actions of debtorassumpsit brought certify, &c., no costs shall be in any of the superior courts against awarded to the plaintiff, &c. a defendant residing in Middlesex, (C) 4 M. & S. 171. It should and liable to be sued in the county seem that if this act, like the Loncourts, where the jury upon the don Court of Requests Act, 89 & trial of such cause shall find da- 40 Geo. 3, c. 104, s. 12, contained mages for the plaintiff under forty the additional words, or otherwise,
of this act after judgment by default and writ of inquiry, but only where there has been a trial; but it is submitted
STRUTTON that the point is deserving of further consideration. In Barney v Tubb (a), it was decided that the Southwark Court WatWELL. of Requests Act, 22 Geo. 2, c. 47, could not be pleaded to an action brought in a superior court; but that the proper mode for the defendant to avail himself of it, was by entering a suggestion on the record, after verdict, or the execution of a writ of inquiry. Now the words of that act are, “that if in any action, &c. for recovery of any debt sued against any person (within the jurisdiction) in any of the king's courts, &c., it shall appear to the judge or judges of the court where such action shall be sued, that the debt to be recovered by the plaintiff does not amount to forty shillings, and the defendant shall duly prove by sufficient testimony,” that he is liable to the jurisdiction of the inferior court, the plaintiff shall pay costs to the defendant; words which seem as strongly to allude to a verdict after trial as the words, where the jury upon the trial of such cause shall find, &c. in the Middlesex County Court Act; neither of them being followed by the qualifying words, or otherwise, upon which the distinction has in some cases been held to turn (6).
The two cases appear somewhat at variance, and therefore the question seems to require further consideration.
Lord TENTERDEN, C.J.-I think we ought to act upon the authority of the case of Harris v. Lloyd (c), and grant no rụle in this case. It was there decided by this Court, that
it would extend to a verdict on a inquiry, the defendant may come writ of inquiry. That act provides into court and move to stay prothat if any action be commenced, ceedings on payment of the daout of that court for any debt not mages
Dunster v. exceeding 5l., against any person,
Day, 8 East, 239; and see Corn(within the jurisdiction,) the plain- forth v. Lowcock, ante 321, 322, tiff shall not, by reason of a verdict n. and cases there collected. for him, or otherwise, be entitled to (a) 2 H. Bl. 351, costs; upon which it bas been held, (b) Ante, 562, note (6). that after judgment by default, and (c) 4 M. & S. 171. And see damages assessed upon a writ of post, 566.
1828. a suggestion cannot be entered under this act of parliament,
in order to entitle the defendant to doublecošty, after STRUTTON
judgment by default and 'writ of inquiry, but only where Wutwell. 'there has been a trial. I am of opinion that that was a right
decision, and I consider it much better to act upon it in the first instance, than by granting a' rule to shew cause, to unsettle the question.
ANSTEE V. LILEY. Under the St. ASSUMPSIT for the use and occupation of a stable, for Alban's Court of Requests goods sold and delivered, and on the money counts.' Plea, Act, 25 Geo, 2, non assumpsit. At the trial before Lord Tenterden, C. J., c, ant must plead at Guildhall, at the adjourned sittings after 'last' Trinity his resiancy within the
Term (a), the plaintiff obtained a verdict for 17. 18. on the liberty; and if count for goods sold and delivered, but failed to establish he omit to do so, he will not any further 'claim. In the following term the defendant be allowed tained a rule calling upon the plaintiff “to shew cause why to enter a suga gestion to a suggestion should not be entered upon the record, that at deprive the
the time of the commencement of this action the defendant plaintiff of his costs where was liable to be summoned to the Court of Requests for the verdict is under 40s.
the borough of St. Alban's, in the county of Hertford, and the liberty thereof, for the sum found by the jury for the plaintiff on the trial of this cause, pursuant to the statute of the 25th year of king Geo. 2, c. 38, the said sum not having been so found for or in respect of any debt for rent upon any lease of lands or tenements, or any other real contract, or for or in respect of any debt arising by reason of any cause concerning testament or matrimony; and why the verdict should not be entered up for the plaintiff for the said sum alone without costs." This rule was obtained upon the affidavit of the defendant's attorney, stating that at the trial a verdict had been found for the plaintiff for the sum of 11. Is. only for goods sold and money lent. 'By
25 (a) Counsel for the plaintiff
, Chitty; for the defendant, Gurney and Busby.
Gea, 2, 6, 38, it is enacted," that if in any action of debt, or action on the case upon an assumpsit for recovery of any debt, to be sued and prosecuted against any person or persons aforesaid, in any of the king's courts at Westminster on elsewhere, out of the said Court of Requests, the plaintiff shall declare for any sum of money not amounting to the sum of 40s., the defendant may plead generally, in lieu of such action, that at the time of commencing such action the defendant was inhabitant and resident within the said borough of St. Alban's, or the said liberty of St. Alban's, or any part thereof, and was liable to be warned or summoned before the said Court of Requests, without pleading any other matter specially. And in case the plaintiff in any such action shall declare for the sum of 40s., or any sum of money not exceeding 40s., the defendant may plead generally, over and above such matters as aforesaid, that the defendant was not at the time of commencing such action indebted to the plaintiff in any sum or sums of money amounting to the sum of 40s. without pleading any other matter specially; whereto the plaintiff shall or may reply generally, and deny the matters pleaded as aforesaid; and if the plaintiff be nonsuited or discontinue his action, or verdict pass against him, or judgment be given on demurrer, the defendant shall have full costs; provided always, that it shall and may be lawful to and for the said plaintiff in such action afterwards to prosecute the said defendant for the recovery of his or her said debt in the said Court of Requests, any thing hereinbefore contained to the contrary thereof notwithstanding."
die die Chitty now shewed cause. Where the debt is laid in the declaration under 40s., a defendant who wishes to avail himself of 25 Geo. 2, 4. 58, is simply to plead his residence and liability. If the debt is stated at above 40s. the defendant must also plead that the debt is under 40s. When an act says that no action shall be brought, it need not perhaps be put upon the record; but the objection should be taken at the trial. Here, however, at the trial, the de