tum. The plaintiff as to all the trespass in the fifth count, except as to the mowing, taking, and carrying away the corn; and as to the seizing, taking, and carrying away the hay and grass in the sixth count, and converting thereof, entered a nolle prosequi, and took issue as to the rest.

From what has been said, it appears that a nolle prosequi is a partial forbearance by the plaintiff to proceed any further either as to some of the defendants, or to part of the suit; but still he is at liberty to go on as to the rest. And therefore it differs from a judgment of non pros. ; for by this latter, the plaintiff is put out of court, against all the

(s) [It was otherwise, until the stat. 3 & 4 W. 4, c. 42, where the nolle prosequi was entered as to one of several defendants on a plea going only to his personal discharge, as of his bankruptcy. Harewood v. Matthews, 56 G. 3, K. B. Tidd, 710. 6 Bing. 445. Booth v. Middlecoat. 4 Moo. & P. 182. S. C. But now, by s. 32 But now, by s. 32 of that statute, "where several

defendants. Philpot v. Muller, Doug. 169, 3rd edition, note 56. It has been held that a defendant, against whom the plaintiff enters a nolle prosequi, is entitled to his costs by virtue of the statute, 8 Eliz. c. 2, s. 2. 3 T. R. 511. Cooper v. Tiffin (8).

(4) Here stood a note by Mr. Serjeant Williams expressing his concurrence in the opinion of the Reporter (Ante, p. 211), and discussing with great learning the question where a traverse ought or ought not to be taken. But the abolition of special traverses and of special demurrers has rendered this learning inapplicable to the present state of the law, and the note has therefore been omitted.

"as to part of any declaration,

the defendant shall be entitled "to and have judgment for and

66

recover his reasonable costs in "that behalf." The defendant is entitled to his costs, under this section, where a nolle prosequi is entered as to part of the sum claimed in the declaration. Bing. N. C. 331. Williams v. Sharwood.

3 Scott, 761. S. C. Before the statute it was held that] where the plaintiff entered a nol. pros. to some of the counts in a declaration, he was not entitled to the costs of such counts, although he succeeded on the others. 16 East, 129. Hubbard v. Biggs. 2 Marsh. 145. Bertram v. Gordon.

FORTH and Others

(a) [7 A. & E. 19. Morton v. Burn. 2 N. & P. 297. S. C. Accord.] Although a chose in action cannot be assigned in law, yet it may in equity; and the forbearance of the assignee to sue either at law in the name of the assignor (which the courts permit, 1 T. R. 26. Delany v. Stoddart), or in equity in his own name, is as beneficial to the debtor as if the assignee had been the original creditor and had forborne; it is therefore a good consideration for a promise to pay the assignee.

of the debt forbears, at his request, to sue. Hard. 71. Reynolds v. Prosser. 1 Vent. 153. Oble v. Dittlesfield. 1 Rol. Abr. 29, pl. 60; though Potter v. Turner, Winch, 7, aud Palm. 185, S. C., was decided to the contrary: but this is contradicted by all the other authorities (a). If forbearance to sue, by an assignee of a debt, be a suffi

The courts of law have in several instances taken notice of assignments of choses in action. In 1 T. R. 619. Winch v. Keeley, the plaintiff, a bankrupt, sued for a debt which he had assigned to a third person before his bankruptcy: the defendant pleaded the bankruptcy, and the plaintiff replied the assignment. The court held the replication good, because the debt so assigned did not pass under the commission. 4 T. R. 690. Howell v. M'Ivers. S. P. 3 Bos. & Pull. 40. Car

cient consideration to make an executor, &c., liable de bonis propriis, forbearance, by the creditor

penter v. Marnel. [9 A. & E. 292. Dangerfield v. Thomas. 1 P. & Dav. 287. S. C. 8 M. & W. 743. Parnham v. Hurst. See further 9 Bing. 372. Crow foot v. Gurney. 2 M. & Scott, 473. S. C. 5 A. & E. 107. Tibbits v. George. 6 N. & M. 804. S. C. 9 A. & E. 375. HutchinHutchinson v. Heyworth. 1 P. & Dav. 266. S. C. But if the debt to be secured be less than the debt assigned, and there is nothing more than a simple assignment of the debt as a security, the right of action vests in the bankrupt's assignees. For in such a case they would not be bound to refund all they recovered to the equitable assignee of the debt. 13 M. & W. 796. 809. D'Arnay v. Chesneau. See also 1 E. & B. 66. Castelli v. Boddington. S. C. in error, ibid. 179. 2 E. & B. 624. Westoby v. Day, per Lord Campbell.] So in 1 Bos. & Pull. 447. Legh v. Legh, where the assignee sued in the name of the obligee, the court set aside a plea of release by the obligee. [But the court will not stay proceedings before judgment on the

himself, must of course be a sufficient consideration. 9 Rep. 94 a. Bane's case. Cro. Eliz. 644. Cham

application of the debtor and assignee. 2 C. B. 292. Seppings v. Nokes. And since the C. L. P. Act, 1854, s. 85, the facts may be brought forward by way of equitable replication. Moreover, since that statute it is a good plea, on equitable grounds, under sect. 83, in an action of debt, that the plaintiff had assigned the debt to a third party, who gave notice of the assignment to the defendant, and that the assignor was not suing for the benefit of the assignee or with his consent. 1 Law Rep. Q. B. 372. Jeffs v. Day. assignee of a bond, originally given by the plaintiff for the use of another, cannot set it off in an action against himself. Wake v. Tinkler. 12 C. B. N. S. 277.

36.

The

16 East,

See also Watkins v.

Isberg v.

Clark. 8 Exch. 852. Bowden. But since the C. L. P. Act, 1854, s. 83, admitting pleadings on equitable grounds, a debt due to a third person as a trustee thereof for the defendant may well be set off. And so a debt due from the real plaintiff on whose behalf the nominal plaintiff is suing as trustee, may be

pleaded by way of equitable set off. Ibid. Leake on Contr. 358.] [So where the plaintiff had bargained with one J. E. for the purchase of houses, and the defendant in consideration that the plaintiff would sell and give up to him (the defendant) the said bargain, promised to pay him a certain sum, it was held, that there was nothing illegal in such an assignment of a chose in action, and that it was a good consideration for the defendant's promise. 2 Bing. 437. Seaman v. Price. 10 Moore, 34. S. C. 4 B. & C. 525. S. C. in error.] See the observations of Buller, J., as to assignments of choses in action, in 4 T. R. 340. Master v. Miller. The assignee of a Scotch bond may sue here in his own name in assumpsit. 8 T. R. 595. Innes v. Dunlop. The assignee of an Irish judgment by cognovit, may sue here in his own name. 3 Taunt. 82. O'Callaghan v. Marchioness Thomond. The assignee of an India bond formerly could not; 13 East, 509. Glyn v. Baker; but now he may by stat. 51 Geo. 3, c. 64, s. 4. The assignee of an India certificate cannot; 16 Ves. 443. Williamson v. Thompson; [nor the trustee under 54 Geo. 3, c. 137. (Scotch Bankrupt Act.) 6 M. & S. 126. Jeffery v. M'Taggart. See now stat. 2 & 3 Vict.

c. 41, and 2 Scott, N. R. 229. Furgusson v. Spencer; where it was held that the assignees of an Irish bankrupt can sue.] Bills of exchange and promissory notes are assignable, so as to give the assignee a right of action in his own name, the former by the common law, the latter by stat. 3 & 4 Ann. c. 9, s. 1. In a modern case it was laid down, that negotiable instruments are to be considered rather as personal chattels, than as choses in action; and it was held, that where a bill of exchange had been given to a feme sole, who married before it became due, her husband might maintain an action upon it in his

Own

name without joining the wife, and without any indorsement having been made by her. 1 B. & A. 218. M'Neilage v. Holloway. And certainly it might be inferred from the language of the judges that the opinion of the court in that case was, that the bill in question would not, if no action had been brought, have survived to the wife. But it may now be considered as settled law that a bill or note given to the wife before marriage will survive to her, provided her husband has not reduced it into possession. 12 M. & W. 855. Sherrington v. Yates. 6 Q. B. 937. Hart v. Stephens. [So if a bill or note is

made or indorsed to a married woman during her coverture, if the husband neglect to sue on it, it is now settled, after some conflict of authorities, that it will survive to the wife. 2 B. & Adol. 447. Richards v. Richards. 6 M. & W. 423. Gaters v. Madeley. 12 M. & W. 855. Sherrington V. Yates. 6 Q. B. 937. Hart v. Stephens. 7Q. B. 864. Scarpellini v. Atcheson. 3 Exch. 136. Howard v. Oakes. 4 Law Rep. Eq. 580. Pigott v. Pigott. Law Rep. Q. B. 536. Fleet v. Perrins. 4 Law Rep. Q. B. 500. S. C. in error.

3

By a decree of judicial separation, the wife's choses in action not reduced into possession at the date of the decree become, under stat. 20 & 21 Vict. c. 25, her absolute property. 7 Law Rep. Eq. Cas. 228. Johnson v. Lander.]

Stock and money in the public funds are not goods and chattels, but choses in action, and do not pass by a grant of bona et catalla felonum. 5 Price, 217. Rex v. Capper and others.

Of late, other mercantile instruments have been held to be transferable by indorsement, so as to vest the property in the assignee, and enable him to sue in his own name: as bills of lading, 5 T. R. 683. Lickbarrow v. Mason. [Mood. & M. 511. Renteria v.

defendant had assets. 9 Rep. 94.

Ruding. But the contract expressed in the bill of lading was not assignable; so that the assignee or indorsee could not sue the master of the ship upon it, nor could the assignee or indorsee, as such, be sued on the contract contained in it. But now by stat. 18 & 19 Vict. c. 111, s. 1, "every "consignee of goods named in a "bill of lading, and every indorsee "of a bill of lading to whom the

property in the goods therein "mentioned shall pass, upon or "by reason of such consignment "or indorsement, shall have trans"ferred to and vested in him all

had been made with himself." Under this Act, the rights and liabilities of the consignee or indorsee of a bill of lading pass from him by indorsement over to a third person. 11 C. B. N. S. 842. Smurthwaite v. Wilkins. But the original shipper does not get rid of his liability to pay freight by indorsement of the bill of lading; 6 H. & N. 630. Fox v. Nott; unless the shipowner accepts an indorsement conditional upon discharging him. 2 Law Rep. Exch. 37. Leake on Contracts, 614. See also 4 H. & Colt. 674. Lewis v. McKee. See