1834. COWELL v. by referring to arbitration. The ninety-third rule is unqualified, and is calculated to embrace causes referred, as well as causes which are pursued to their legal BETTELEY. result in Court. In the Court of Exchequer it has been said, the rule is inflexible. Hambleton v. Higginbottom. (a) We are desirous, however, not to disturb the award, except in so far as it is incompatible with the rule of Court. Rule absolute accordingly. (a) Jervis's Rules, 94. Jan. 29. Defendant, with consent of bail, gave a cognovit with stay of execution. He omitted to pay when the time elapsed. SURMAN V. BRUCE. WILDE Serjt. obtained a rule nisi to enter an exoneretur on the recognizance of bail in this cause, on an affidavit which stated that the bail justified on the 29th of June 1831; that on the 8th of November 1831, the Defendant, with consent of the bail, gave a cognovit for debt and costs, upon condition that no execution should issue till May 8th, 1832; that judgment was signed on the 10th of May, and a ca. sa. issued against having given the Defendant, tested the 16th of April, and returnable the 26th of May, was returned non est inventus; that the Plaintiff gave no notice of this to the bail, but waited till Defendant died, December 8th, 1833; that the bail were applied to, to pay the debt and costs on the 7th of Jan. 1834, before which time they had never received any notice that the cognovit remained unsatisfied. Plaintiff not the bail notice of this, Held, he could not proceed against them half a year afterwards, upon Defendant's death. The grounds upon which it was contended the bail ought to be relieved, were, principally, want of notice that the cognovit was unsatisfied; Clift v. Gye (a), Charleton v. Morris (b): and that the Plaintiff's laches was a discharge to the bail. Andrews Serjt. shewed cause. Clift v. Gye does not decide that the bail shall be discharged under circumstances like the present; but merely that before they are proceeded against, they ought to have notice that the cognovit remains unsatisfied: the present rule, therefore, prays for too much, and cannot be made absolute. In Charleton v. Morris there was a negotiation with the principal after the day of payment, which was never disclosed to the bail. But Rawlinson v. Gunston (c) decides that if the principal die after the return of the ca. sa., the bail are fixed. The bail being aware of the cognovit, it was their duty to learn whether it had been satisfied; and it may be inferred that they knew the situation of their principal. Wilde. In Rawlinson v. Gunston time had not been given to the principal under a cognovit : that case, therefore, has no application to the present, where the plaintiff, having accepted a cognovit, was bound to inform the bail of his proceedings under it. Clift v. Gye is in point. TINDAL C. J. This case falls within the principle of Clift v. Gye, where a plaintiff with the consent of the bail to the sheriff, took a cognovit, with a stay of execution for a month: it was held, that though the bail continued liable, the debt not having been paid, yet the plaintiff could not take proceedings against them without giving them notice that the cognovit was unsatisfied. (a) 9 B. & C. 422. (c) 6 T. R. 284. Ff4 Here 1834. SURMAN บ. BRUCE. 1834. SURMAN บ. BRUCE Here no such notice was given; and we cannot infer knowledge without notice, where notice is required. As no proceedings have actually been taken against the bail, the rule should be absolute without costs. Rule absolute accordingly. Jan. 30. Upon a settlement of accounts at the end of a voyage, Defendant, one of two shipowners, agreed to pay the broker's bill, and in consideration was allowed a larger share of profits. He WILSON V. CUTTING. THE Plaintiff and Defendant were the owners of a ship, and in that capacity owed Burnett, a broker, 621. 10s. In June 1832, at the conclusion of a voyage, they came to a settlement of accounts, upon which the Defendant was allowed 627. 10s. more than was due to him in respect of his interest in the vessel, in consideration of his undertaking to discharge Burnett's demand. This, however, he omitted to do, and Burnett arrested both Plaintiff and Defendant for the amount; where upon Plaintiff paid Burnett the 627. 10s. in October, and omitted to pay now sought to recover it of the Defendant in an action the broker, who sued both for money paid and on an account stated. owners for the amount. Plaintiff, the other owner, The Plaintiff and Defendant ceased to be joint owners of the vessel in November 1832. A verdict was found for the Plaintiff; but Gaselee J., before whom the cause was tried, gave leave to the Defendant to move to set it aside and enter a nonsuit, upon the rumour of a recent case in the King's Bench, in which, under similar circumstances, it was said the Plaintiff had been nonsuited. Goulburn Serjt. moved accordingly, on the ground that this was a partnership debt, for the payment of which the Plaintiff could not recover against the Defendant in a court of law. In Fromont v. Coupland (a), where the plaintiff and defendant had been engaged in running a coach from B. to L., plaintiff finding horses for one part of the road, defendant for another, and the profits of each party were calculated according to the number of miles covered by his own horses; the plaintiff received the fares, and rendered an account thereof to the defendant every week: it was held, that plaintiff and defendant were partners in the concern, and that in an action by the plaintiff against the defendant upon a separate transaction, the defendant could not set-off a balance which had been declared in his favour upon those weekly accounts. TINDAL C. J. These two persons, who were, no doubt, partners as to the proceeds of the voyage in question, settled and adjusted their accounts as to that voyage, and the Defendant charged himself with the payment of the broker's bill. In consequence of that undertaking, he received on the account a larger sum from the Plaintiff than he otherwise would have done; and this amounted to an engagement that the broker's claim should be considered the individual debt of the Defendant. The circumstances are entirely clear of the case cited, and there is no reason for disturbing the verdict. PARK J. I am of the same opinion. There is nothing in the case. This was a settlement of account for one entire voyage, and the case falls within the principle of Owston v. Ogle (b), where it was held, that each part owner of a ship has a several interest in making out the account of a single voyage, by which his share is to be 1834. WILSON ข. CUTTING. ascer 1834. WILSON V. CUTTING. ascertained even before an actual division is made of the profits of the adventure. Alderson J. There is no real difference between this case and one which I shall put. Suppose, after settling for the voyage, Wilson had given Cutting the money to pay the broker, and Cutting had omitted to pay him; would not an action of money had and received have lain for Wilson against Cutting? In the case supposed to have been tried in the King's Bench, the reason of the nonsuit must have been, that the account was not a final account. GASELEE J. I felt no doubt at the trial, and, but for the case referred to as having occurred in the King's Bench, should not have reserved the point. When it appeared that this case was a final account for an entire voyage, the cause was at an end. Rule refused. Jan. 30. Plaintiff having allowed De fendant to retain a sum of money under an order of Court obtained by her for taxation of his costs, KENDALL v. ALKEN. THE Plaintiff's son became bankrupt in March 1827; at which time he owed the Defendant, an attorney, a considerable sum for costs. The Defendant at that time held in his hand a bond from the Plaintiff's son to the Plaintiff; and the Plaintiff by letter agreed, in consideration of the Defendant giving up this bond, to discharge the costs due from her son to the Defendant out of the dividend to Held, she could not afterwards sue him for the amount. be |