have been some difficulty in saying that the plea discloses a suspension of payment. It states that the defendant was a trader, and was indebted to divers persons in divers sums, and was unable to pay the same in full. When a man says that, surely it cannot be a very forced construction to say that he has failed to meet his engagements with his creditors. Upon the whole, I think the plea is sufficient, and that the defendant is entitled to judgment.

TALFOURD, J.-I am of the same opinion. The objection arising from the omission of the names of the several creditors and the amount of their respective debts, has received a sufficient answer from my Lord *and my learned Brothers. The cases cited in support of that objection, will be found to be cases where, as in Gatty v. Field, [*766 9 Q. B. 431 (E. C. L. R. vol. 58), the plea professed to set out the names, but set them out imperfectly, or where the reference was of such a nature as that there could have been no objection, on the score of prolixity, to the setting them out. As to the allegation of suspension of payment, though there might have been some difficulty if the imperfect statement of it had been pointed out as ground of special demurrer, I think that, taking the statement of the deed with the antecedent and subsequent references, it sufficiently appears that the making of the deed itself amounted to a suspension of payment within the meaning of the statute. Upon the whole, it appears to me that the plea in substance satisfies all the requisites of the act of parliament, and therefore that there must be judgment for the defendant.

Judgment for the defendant.(a)

(a) See Stewart v. Collins, 10 C. B. 634 (E. C. L. R. vol. 70).

PARKER v. THE GREAT WESTERN RAILWAY COMPANY.

June 6.

The court refused to compel the plaintiff to give security for costs, upon affidavits stating that he was in insolvent circumstances, and had mortgaged or assigned to a third party all his interest in the subject-matter of the action.

THIS was an action brought by the plaintiff, a carrier, to recover from the Great Western Railway Company a large sum of money alleged to be due to him from them for overcharges said to have been made by the company in respect of goods carried on their railway. Upon the cause coming on for trial, it was *referred to an arbitrator, who was still proceeding with the reference.

[*767

On the 7th of February last, a notice, signed by the plaintiff, of which the following is a copy, was served upon the company :"To the Great Western Railway Company.

"Take notice, that, by indenture bearing date the 7th day of Feb.

ruary, 1850, and made between the undersigned, Richard Parker, of the New Inn Yard, Old Bailey, in the city of London, common carrier, of the one part, and John Scott, of, &c., of the other part,-after reciting, amongst other things, that the said Richard Parker claimed various large sums of money to be due and owing to him from the Great Western Railway Company, and had brought an action for recovery of part thereof, which action and all other matters in difference between the said Richard Parker and the said company had been referred to arbitration; and that the reference was still pending; and that the said Richard Parker was indebted to the said John Scott in a certain sum of money in the said indenture mentioned, the said Richard Parker did thereby bargain, sell, assign, transfer, and set over unto the said John Scott, his executors, administrators, and assigns, all and every the several claims and demands, sums and sum of money whatsoever due and owing to the said Richard Parker from the Great Western Railway Company for and in respect of damages, overcharges, or otherwise, for recovery of part whereof the said action had been commenced, and in respect of other part whereof a notice in writing had been given to the said Great Western Railway Company by the said Richard Parker, which said notice was accompanied by three books of account containing the particulars of such last-mentioned

claim, and in respect of other part *whereof a further notice in

*768] writing had been given pursuant to the power and authority

contained in the therein recited order of reference, and also all and every other claims and demands, sums and sum of money thereafter to be made or to accrue to the said Richard Parker, and which should or might be included in any award to be made by the arbitrator to whom the said cause and the said matters in difference had been referred, and all and every the right and interest, benefit, claim, and demand whatsoever of the said Richard Parker of, in, and to the same, and every part thereof respectively, and of, in, and to the said action, reference, and the award to be made in pursuance thereof,—To hold the said premises unto the said John Scott, his executors, administrators, and assigns: And take further notice, that, in the said indenture is contained a power for the said John Scott, his executors, administrators, and assigns, to demand, recover, and receive of and from the said Great Western Railway Company, and every person whomsoever liable to pay the same, the said claims and demands, sums and sum of money, every or any part thereof, and to prosecute the said action and reference in such manner as the said John Scott, his executors, administrators, and assigns, might think fit, and to obtain and procure the award of the said arbitrator, and to take and prosecute all such ways and means and all such proceedings as night be necessary or proper in the judgment of the said John Scott, his executors, administrators, or assigns, for obtaining and enforcing the performance and fulfilment

of the said award, and also to enter into any composition, compromise, or agreement touching the said claims and demands, sums and sum of money, every or any part thereof, or the said action and reference, which the said John Scott, his executors, administrators, or assigns might think fit; and that the consent of the said Richard [*769 Parker, his executors or administrators, should not be requisite. or necessary for that purpose, and to give such receipts, releases, acquittances, and discharges from time to time for all such moneys as should be paid to the said John Scott, his executors, administrators, or assigns, or to his or their attorney or attorneys, for or on account of the said premises, and generally to do, execute, and assent to any and every other act and thing which he or they might think proper with reference to the matters aforesaid; and in the said indenture is contained a proviso for redemption of the said premises on payment, on or before the 7th day of May next, by the said Richard Parker, his executors or administrators, to the said John Scott, his executors, administrators, or assigns, of the sum of 32681. 16s. 4d., with interest thereon at the rate of 51. per centum per annum, and of such further sum and sums of money as the said John Scott, his executors or administrators, should from time to time advance to or for the said Richard Parker; provided that the amount to be secured by the said indenture should not exceed in the whole the principal sum of 5000l. Dated," &c.

Upon an affidavit setting forth the above facts, and further stating that the plaintiff was made a bankrupt in 1846, and that afterwards he set up again in business as a carrier at the New Inn, Old Bailey, but that ever since his said bankruptcy he had been in failing circumstances that the plaintiff, for a long time prior to the said 8th of February, 1850, had a person in charge of his premises and his stock and plant at the New Inn, Old Bailey, on behalf of other persons, creditors of the plaintiff, either under an execution against the said plaintiff, or under some agreement whereby the plaintiff agreed to account to the said creditors or persons for all the business he transacted there: that the plaintiff had for some time past had a place other than his [*770 own premises, where he could put his wagons and carts, to prevent any person from seizing them, and that they had frequently been put there to avoid seizure by his creditors: that the horses and other plant of the plaintiff had frequently been seized by persons having claims upon him, and that the plaintiff had often been obliged to leave his goods at the station of the said railway, because he had not enough money to pay for the carriage of them: that the plaintiff had lately left the premises he occupied at the New Inn, Old Bailey, as aforesaid, and taken very small premises elsewhere for conducting his business of a carrier that the plaintiff had from time to time received money from John Scott, mentioned in the aforesaid notice, and that the said John Scott had been assisting the plaintiff in all his undertakings and in this

*771]

action that, at one of the meetings held before the arbitrator, appli cation was made to the arbitrator, by the counsel for the plaintiff, to allow the said John Scott to be present at the said reference, and that it was then expressly stated by the said plaintiff's counsel, as a reason for the said application, that the said John Scott was interested as assignee of the said claims in this action against the company; that the arbitrator acquiesced in the application; and that the said John Scott was present at the said meeting, and at all the subsequent meetings held under the said reference: that the said John Scott had for some time past found, and still found, the money for the plaintiff to conduct this action, and that there was, as the deponent believed, some agreement or understanding on the part of the said John Scott to pay the plaintiff's costs of this action: and that the deponent verily believed that the plaintiff was in insolvent circumstances, and altogether without means of his own, and unable to pay the defendants their costs of the action, if they should be successful; and that the action was proceeding solely for the benefit of the said John Scott. Hoggins moved for a rule calling upon the plaintiff to show cause why the proceedings should not be stayed until he gave the defendants security for costs.-The affidavit sufficiently shows that the plaintiff is insolvent, and that the action and reference are proceeding solely for the benefit of Scott, the assignee of the claim thereby sought to be recovered, and therefore the defendants are entitled to security. In Perkins v. Adcock, 14 M. & W. 808,† it was expressly held by the Court of Exchequer, that, where a plaintiff is bankrupt or insolvent, and has assigned the debt for which the action is brought, and is suing for the benefit of the assignee, the court will require security for costs. So, in Ball v. Ross, 1 M. & G. 445 (E. C. L. R. vol. 39), 1 Scott, N. R. 217, where an action of trespass appeared to have been brought by a man in very humble circumstances, at the instigation and at the costs of his landlord, the court ordered the latter to give security for the defendant's costs,-being satisfied from the affidavits that the action was "really and substantially the action of the landlord." [MAULE, J.-You assume that the defendants are entitled to security for costs under the circumstances, even if the plaintiff be a solvent person. The authorities, however, do not warrant that. The action being brought by the proper plaintiff, he being a person having an interest in the result, the assignment to Scott being by way of mortgage only,-and being solvent, surely no case is made out for calling upon him or anybody else to give security for the costs. WILDE, C. J.-I do not recollect any case of a mere mortgagee being compelled to give security. *772] MAULE, J.-The case of Wray v. Brown, 8 Scott, 557, 6 N. C. 271 (E. C. L. R. vol. 37), seems conclusive on the point: there, the court refused to compel the plaintiff to give security for costs, upon an affidavit that he had been bankrupt, and thrice dis

charged under the insolvent debtors act, and that he was suing as trustee for a third person, who alone was beneficially interested in the subject-matter of the action. TINDAL, C. J., said: "It appears to me, that, as each of the grounds here urged for requiring the plaintiff to give security for costs, taken separately, is insufficient, so, taken together, they do not help each other. That the action is brought in the name of the plaintiff as trustee for a third person, is, according to the authority of Morgan v. Evans, 7 J. B. Moore, 344 (E. C. L. R. vol. 17), no ground for compelling security and Snow v. Townsend, 6 Taunt. 123 (E. C. L. R. vol. 1), 1 Marsh. 477 (E. C. L. R. vol. 4), shows that insolvency is no ground for such a motion. The true principle that governs these cases is laid down by Lord KENYON in Webb v. Ward, 7 T. R. 296. It cannot,' he says, be laid down as a general rule, that an uncertificated bankrupt must in all cases give security for costs when an action is brought by him: that would be going much too far: each case must depend on its own circumstances. But it is fair to say, that, if the action be really brought for the benefit of the assignees, they should be responsible for the costs.' I therefore think this rule must be discharged." And ERSKINE, J., said: "Finding it to be clearly settled that the circumstance of the plaintiff having been discharged under the insolvent debtors act did not entitle him to come and ask for security for costs, the defendant adds another ground, viz. that the action is really brought for the benefit of a third person: but this was held, in Morgan v. Evans, not to be a sufficient reason for compelling *the plaintiff to give security. I therefore agree that the [*773 rule must be discharged." That case, I think, disposes of the present application. A man having a cause of action against another, be he ever so insolvent, has a right to enforce it in a court of law. But, if he lends his name to another, to enable that other to proceed for his own benefit, the defendant is entitled to ask for security.]

WILDE, C. J.-All the cases that I am aware of in which security for costs has been enforced, have been cases where the action is shown. to have been really brought for the benefit of a third person, in the name of the nominal plaintiff. I know of none where security has been required merely on the ground that the debt has been assigned to a third person. The case of assignees suing in the name of the bankrupt is different. The mere circumstance of the party who has a lien upon the proceeds of the action attending before the arbitrator to watch the proceedings, cannot have the effect of casting upon him a liability which otherwise the law would not have cast upon him.

MAULE, J.-My Brother COLERIDGE, in a case of Andrews v. Marris, 7 Dowl. P. C. 712, states the rule very much in the terms in which it has been stated by my Lord. He says, "The principle is, that, where another person is, in fact, proceeding with an action in the name of the party on the record, and that party is insolvent, the court will compel him