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cover the purchase-money paid by the plaintiffs to the defendant for a brown mare warranted (verbally and in writing) sound, free from vice, and quiet; that she was the most vicious and unquiet brute the deponent (who was a dealer) had ever possessed; that several grooms who had in vain attempted to ride her, as well as the deponent's three brothers and himself, were material witnesses to prove the plaintiffs' case, as well as several veterinary surgeons, amongst others, one of the professors at the Royal Veterinary College, to the number in all *433] of twenty-five, all resided in Middlesex; and that the deponent estimated the extra expense of trying the cause in Yorkshire would be at least 1007., besides the expense and risk of taking the mare down to York.

ERLE, C. J.-The cause of action having arisen in Yorkshire, and the inconvenience being about equal, the common-law right turns the scale.(a)

The rest of the court concurring,

Rule refused.

(a) It has generally been understood to be the plaintiff's common-law right, in a transitory action, to lay the venue where he pleases, and that the onus of showing a preponderance of "inconvenience" lay on the defendant. See Archbold's Practice, 11th edit. (Prentice), 1339,

1342.

BEVAN v. WHITMORE.

Nov. 16.

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An official assignee of a district court of bankruptcy having given his assent to the bringing of an action in his name jointly with that of the trade-assignee for the recovery of part of the bankrupt's estate, and the action proving unsuccessful, the trade-assignee paid the costs:Held, that he was entitled to sue the official assignee for contribution.

The court or a judge has a discretion to dispense with bail on appeal, as well as with bail in

error.

An official assignee of a district court of bankruptcy having been sued by the trade-assignee for contribution to the costs of an unsuccessful action to which the former was an assenting party, and judgment having gone against him,-Held, that it was a fit case for dispensing with bail on appeal.

THIS was an action brought by the plaintiff, who was the tradeassignee under a fiat against one Foster, a merchant at Birmingham, to recover from the defendant the sum of 1271., being a moiety of the costs incurred and paid by the plaintiff in an action brought by both as assignees against one Dowling, under the following circum

stances:

In January, 1856, the bankrupt had given Dowling a bill of sale of certain property. He afterwards attempted a compromise with his creditors under the arrangement clauses of the Bankrupt *434] Act: but, failing in this, he was made bankrupt, and the defendant, Whitmore, was appointed official assignee under the fiat, and the plaintiff, Bevan, who was the principal creditor of the bankrupt, trade-assignee. Dowling having possessed himself of the property conveyed to him by the bill of sale, the trade-assignee demanded their restoration on the ground that the conveyance was a fraudulent preference and an act of bankruptcy. Dowling declining to comply with this demand, the trade-assignee took the opinion of counsel; and, being advised that there was good ground of action against Dowling, he wrote to the official assignee requesting his concurrence in bringing

the action. Having obtained the concurrence of the official assignee, and having on the 29th of June, 1857, obtained an order from the commissioner for that purpose, the trade-assignee on the 4th of July brought an action of trover against Dowling. Mr. Crosbie acted as the attorney for the plaintiffs in that action,-Reece, the solicitor to the fiat, being Dowling's attorney, and having as such prepared the bill of sale for him. The declaration was delivered on the 4th of October, 1857, but the cause was not brought to trial until June, 1860, when it resulted in a verdict for the defendant. Whitmore was never in any way consulted during the progress of the proceedings. In the meantime, a case of Monk v. Sharp, 2 Hurlst. & N. 540, had been decided in the Court of Exchequer, which clearly showed that there was no foundation whatever for the action. (a)

*The claim in this action, which was tried before Erle,

C. J., at the sittings in London after last Trinity Term, was [*435 for a moiety of the costs which Bevan had paid to Dowling's attorney, and also a moiety of the costs paid to the attorney who conducted the proceedings, Crosbie, and which last-mentioned costs were paid by Bevan after an action had been commenced against Whitmore and himself for them.

On the part of the defendant, it was submitted, that, whatever might have been his liability to Dowling for his costs, the mere circumstance of his permitting his name to be joined as a plaintiff in the action, for conformity, he having no personal interest in the matter, did not render him liable to Bevan; and, further, that, assuming that he could be liable, there was such culpable negligence on the part of Crosbie in proceeding in the action after the decision of Monk v. *Sharp, as to disentitle Crosbie to recover his costs, or Bevan to recover contribution.

[*436

His Lordship directed a verdict to be entered for the plaintiff for the sum claimed, reserving leave to the defendant to enter a verdict for him or to reduce the damages, if the court should be of opinion that the plaintiff was entitled to recover nothing, or only a proportion of the costs paid to Dowling.

Hawkins, Q. C., on a former day in this Term, moved accordingly.— No doubt, as between Dowling and Whitmore, the goods of the latter would have been liable to an execution for Dowling's costs. But Bevan cannot sue for contribution. Whitmore was only joined for

(a) On the 26th of June, the plaintiffs, who were traders, petitioned the Court of Bankruptcy for protection under the 211th section of the Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 106). They filed an account of debts, and made a proposal according to s. 214. At an adjourned meeting on the 6th of August, the plaintiffs did not attend, and neither the proposal nor any modification of it was accepted, whereupon the meeting was adjourned to the public court, and the plaintiffs were adjudged bankrupts under s. 223. The adjudication was not founded on the petition of a creditor, nor was the plaintiffs' petition dismissed. On the said 26th of June, the defendant was indebted to the plaintiffs. On the 6th of July, the plaintiffs assigned this debt to Messrs. D., and gave notice thereof to the defendant. Messrs. D. had at the time of the assignment of the debt to them notice of the petition for arrangement. It was held, first, that the filing the petition for arrangement was not an act of bankruptcy, that petition never having been actually dismissed, and no petition for an adjudication of bankruptcy having been filed within two months, in pursuance of s. 76,-secondly, that, where a trader is adjudicated bankrupt under the 223d section without the filing of a petition by a creditor, the bankruptcy has no relation back to any act done by the bankrupt prior to the adjudication,―thirdly, that, for the reasons above mentioned, the plaintiffs were entitled to recover the debt in question as trustees for Messrs. D., notwithstanding the bankruptcy.

conformity: and he might have refused to permit his name to be used until a proper indemnity against costs was given to him. He is a mere officer of the court, having no personal interest in the result: whereas, Bevan, being a large creditor, had a direct interest. There is no case in which the point, though one of great importance, has been decided. [BYLES, J.-It is somewhat like the case of two trustees, and one having a beneficial interest and getting the other to join in an action for his benefit.] The nearest case to the present is Turner v. Davies, 2 Esp. N. P. C. 478, where Lord Kenyon says: "I have no doubt, that, where two parties become joint sureties for a third person, if one is called upon and forced to pay the whole of the money, he has a right to call on his co-surety for contribution: but, where one has been induced so to become surety at the instance of the other, though he thereby renders himself liable to the person to whom the security is given, there is no pretence for saying that he shall be liable to be called upon by the person at whose request he entered into the security." [WILLIAMS, J.-The action there was *437] founded upon an equity, which would not exist if the one surety became so at the instance of the other.] Then, there was manifest negligence, as well on the part of Bevan, as on that of the attorney employed by him, in recklessly proceeding in the action against Dowling after a solemn decision of the Court of Exchequer which conclusively showed that there could be no hope of success. [BYLES, J.-If your first point fails, this one resolves itself into an objection of negligence on the part of the attorney employed by both.] It is submitted that Bevan, himself an attorney, was equally guilty of negligence, and may be said to have deluded Whitmore into consenting to a proceeding which he was bound to know must end in defeat.

ERLE, C. J.-Take a rule on the first point,-that the facts did not establish any liability in the defendant.

Quain showed cause.-At the time when these transactions took place, all assets of the bankrupt were received by the official assignee, and he alone had any control over the finances of the estate: and the evidence at the trial showed that there were funds which might have been retained to satisfy this liability. The official assignee had at least an equal interest with the trade-assignee in getting in the assets, being at that time paid by fees according to the scale provided by the Orders in Bankruptcy of 1852, s. 130: and there can be no reason why the two should not be jointly liable for the costs of an unsuccessful action brought by them jointly. It was Whitmore's duty to allow his name to be used in an action brought under the order of the commissioner: and there is no pretence for his asking an indemnity.

*438] Lush, Q. C., and Hawkins, Q. C., in support of the *rule.-This case, it is submitted, does not fall within the ordinary rule as to contributories. An action of this sort only lies where formerly a court of equity would have compelled payment. It is not a mere action of contract: see the judgment of Eyre, C. B., in Deering v. The Earl of Winchelsea, 2 Bos. & P. 270, cited in Cowell v. Edwards, 2 Bos. & P. 268, and that of Lord Redesdale, in Stirling v. Forrester, 3 Bligh 575, 590, 596. [WILLIAMS, J.-It is altogether new to me to hear that those observations are applicable to any other than the case

of co-sureties. The principle is thus stated by Lord Eldon in Craythorne v. Swinburne, 14 Ves. 160, 164: "It has been long settled, that, if there are co-sureties by the same instrument, and the principal calls upon either of them to pay the principal debt, or any part of it, the surety has a right in this court, either upon a principle of equity, or upon contract, to call upon his co-surety for contribution; and I think that right is properly enough stated as depending rather upon a principle of equity than upon contract,-unless in this sense, that, the principle of equity being in its operation established, a contract may be inferred upon [from] the implied knowledge of that principle by all persons; and it must be upon such a ground of implied assumpsit, that, in modern times, courts of law have assumed a jurisdiction upon this subject; a jurisdiction convenient enough in a case simple and uncomplicated, but attended with great difficulty where the sureties are numerous; especially since it has been held that separate actions may be brought against the different sureties for their respective quotas and proportions. It is easy to foresee the multiplicity of suits to which that leads. But, whether this depends upon a principle of equity, or is founded in contract, it is clear a person may by contract take himself out of the reach of the principle or *the im[*439 plied contract. In the case of Deering v. The Earl of Winchelsea, which, I recollect, was argued with great perseverance, persons not united in the same instrument were made to contribute; and it was decided that there is no distinction whether they are bound in the same obligation or by several instruments. That case also established, that, though one person becomes a surety without the knowledge of another surety, that circumstance introduces no distinction. If the relation of surety for the debtor is formed, and the fact is not that the party becomes surety for both the principal debtor and another surety, not for the principal alone, it is decided, that, whether they are bound by several instruments or not, whether the fact is or is not known, whether the number is more or less, the principle of equity operates in both cases, upon the maxim that equality is equity: the creditor who can call upon all, shall not be at liberty to fix one with payment of the whole debt; and, upon the principle requiring him to do justice, if he will not, the court will do it for him." The plaintiff here, as a large creditor of the bankrupt, had a strong interest in attempting to get back the goods from the hands of Dowling. The defendant, as official assignee, had no interest but to do his duty as a public officer. The trade-assignee could not get in the assets without the aid of the official assignee: the latter was clearly entitled to be indemnified for the use of his name: Ex parte Turquand, In re Dickenson, 3 Mont. D. & De Gex 475. [KEATING, J.-Would the official assignee have been entitled to an indemnity where he had a large sum of money in his hands at the time? BYLES, J.-And where he assented to the action being brought? ERLE, C. J. And where the action was brought with the leave of the commissioner?] The assets in hand were not applicable to *these [*440 costs; there was not enough to satisfy the claim of the solicitor to the estate. The assent to the action being brought was a mere official act in execution of the defendant's public duty: and the order of the commissioner would make it compulsory on the official assignee

to allow the action to be brought in his name. By so consenting, he could not lose any equitable right he had. If Whitmore had had execution levied on his goods for the whole cost due to Dowling, he clearly would have had a remedy in equity against the trade-assignee. It does not follow that contribution lies in the circumstances which have happened, because the trade and the official assignees are both parties on the record. Turner v. Davies has never been dissented from. [WILLIAMS, J.-Assuming it to be good law, all that Turner v. Davies establishes, is, that, if the plaintiff had induced the defendant to become surety with him for a third person, he could not sue him for contribution. How does that apply here?] The official assignee, having no personal interest in the result of the action, consented to become a nominal party at the request of the plaintiff. [BYLES, J. Both have an interest in the result.] The official assignee did not retain the attorney: for, the bare act of concurring in an action being brought does not amount to a retainer. [BYLES, J.— Bevan's letter names the attorney, and Whitmore does not dissent.] He does not appear to have been consulted, or ever to have interfered in the matter.

ERLE, C. J.-We are all agreed upon the question of law, viz. that an action will lie for contribution where there is a joint liability, and one has paid the whole amount. The only doubt we have entertained, is, the duty of a jury being cast upon the court, what is the fair inference to be drawn from the facts. If the fair *result of the facts

*441] be that the parties mutually agreed to sue, and the action

failed, and one paid the whole costs, he would be entitled to call upon the other for a moiety. The best conclusion I am able to come to upon the facts, is, that Bevan and Whitmore concurred in bringing the action. If the action had been successful, Dowling would have paid the costs. They did not contemplate the possibility of failure. They, however, did fail. The event was unforeseen. It is clear that no one contemplated that Bevan alone should be liable. Upon the general principle, I think he is entitled to call upon his co-plaintiff for con

tribution.

WILLIAMS, J.—I am of the same opinion. Our decision appears to me to turn upon a question of fact. If the transaction is to be taken to be, that Whitmore authorized Bevan to employ Crosbie to bring the action in their names, and consented that the action should be brought as their joint action, he is clearly liable to pay half the costs, and also half the satisfaction due for the judgment, as between himself and his co-plaintiff: and it can make no difference, that, when he allowed his name to be used, he had no apprehension of having to pay costs. If, on the other hand, the real truth is that the action was commenced and set on foot by Bevan, he knowing that it could not be brought without the assent of the official assignee, and he induced the latter to allow his name to be used for form's sake only, for his own purposes, then it is pretty clear that he could have no action for contribution either in respect of the costs of the action or the judgment. Dealing with the facts as a jury, I can come to no other conclusion than that the defendant is liable.

*442]

BYLES, J.-I agree with my Lord and my Brother Wil liams that the fair result of the facts is, that the parties were

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