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1834.

Court will com

costs.

DOYLE V. ANDERSON. If an insolvent KELLY shewed cause against a rule nisi obtained by debtor proceeds with an action Maule, requiring the plaintiff to shew cause why the pro. after executing ceedings in this action should not be stayed, on the ground although no as- of the plaintiff's insolvency. The facts, as they appear on signees are appointed, the

the affidavits, are these:—The plaintiff some time since pel him to find“ brought an action against the defendant, who is an undersecurity for

writer, on a policy of insurance effected by him. Some time previously, he brought an action against another underwriter on the same policy, and therein was unsuccessful. Being greatly reduced in circumstances, he determined to take the benefit of the Insolvent Act, and accordingly gave notice of his intention so to do to the attorney in the former action. He filed his petition and schedule in the Insolvent Court, and executed his assignment, but no provisional assignee was yet appointed. The time for his hearing, however, was directed. It so happened, that the attorney for the defendant in the former action was the attorney for the defendant in the present. On receiving notice of the plaintiff's intention, the present application was made to compel the plaintiff to stay his proceedings, until security for costs was found. Such an application is not authorized either by principle or precedent. The only two cases in which the Court will interfere to compel a plaintiff to find security for costs are, first, where he is out of the jurisdiction; or, secondly, where the action is carried on in the name of the plaintiff for the benefit of other persons. It is perfectly clear that the plaintiff is not out of the jurisdiction; and therefore, on that ground, there is no pretence for compelling the plaintiff to find security. The mere insolvency of the plaintiff is not a ground for compelling the plaintiff to give security for costs. It does not appear, in this case, that the action is carried on for the benefit of any assignee, for

1834.

DOYLE

ANDERSON.

non constat that any assignee will be appointed. In Snow v. Townsend (a), the plaintiff had been discharged out of prison under the Insolvent Act, and had under that act assigned to the person who sued him all his property. Many persons were indebted to him before his assignment, and his assignee refusing to sue them, he had commenced an action against one of his debtors. There, the Court observed, that the principle on which security for costs was required was, that where a plaintiff was suing for the benefit of his assignees, they ought not to be permitted, if the plaintiff were unsuccessful, to shelter themselves from costs behind the plaintiff's poverty. Here it could not be said, that any assignee was sheltering himself behind the plaintiff's poverty, when it did not appear that any assignee was in existence. Again, in an Anonymous case (6), the Court refused to compel security for costs on the ground that the plaintiff was a bankrupt, or even in Newgate. If the Court were to decide, that the plaintiff in this case must find security for costs before he could proceed with his action, it would in fact be granting the defendant a complete immunity against the plaintiff's claim, until either he or some assignee hereafter to be chosen should give security for cos ts. Sucha course the Court would certainly not sanction, and therefore the present rule must be discharged.

Maule, contrà, contended that the plaintiff, in the present case, must be considered as a mere shadow, and put forward, therefore, only for the benefit of the insolvent's estate. He cited Heaford v. M'Knight (c). There an application similar to the present was made. The facts there were, that issue being joined in Hilary Term, 1822, the plaintiff gave notice of trial for the adjourned Sittings after

(u) 6 Taunt. 123.

(6) 2 Taunt. 61. (c) 4 D. & R. 81; 2 B. & C. 579, S. C.

1834.

Doyle

v. ANDERSON.

that term, but afterwards countermanded the notice. On the 13th of May following, he was discharged under the Insolvent Debtors’ Act, (1 Geo. 4, c. 119), having inserted in his schedule the debt in question as being due to him from the defendant, and having executed the usual assignment of all his estate and effects to the provisional assignee as required by the Insolvent Act. Notwithstanding this, the plaintiff proceeded in his action, and, on the 15th of January, gave a second notice of trial; and the defendant swearing that he had a good defence upon the merits, the Court granted a rule nisi for security for costs. There the Court observed :—“ We think this is a case in which security for costs ought to be given. The plaintiff having executed an assignment to the provisional assignee of all his estate and effects, he no longer has a right personally to interfere in recovering this debt; and being insolvent, if he should fail in the action, the defendant would have no remedy for his costs. We think that the plaintiff's assignee, and, if none has been chosen, some of his creditors, should give security for costs before the action ought to proceed."

Patteson, J.-I do not know how to distinguish that case from the present. If this were an action for an assault, or any such injury, that might make a difference. But this is an action on a policy of insurance, the rights of which by the assignment would pass to the assignees; it is quite clear, that they would be entitled to the benefit of it, if they chose. I think, therefore, on the authority of Heaford v. M'Knight, the plaintiff must find security for costs, or else his proceedings must be stayed.

Rule absolute for staying the plaintiff's proceed

ings, unless security for costs should be given.

1834.

tion in the state

lowed on taxa

ALLPORT v. BALDWIN. THIS was an action for a libel published by defendant If, by an alterain the Worcester Herald. Venue in London. Defen- of the pleadings, dant pleaded-first, the general issue; secondly, several after notice of justifications. The cause was appointed to be tried by a witnesses are

unnecessary, the special jury on Thursday, 20th February, 1834, for which party who subday all the plaintiff's witnesses were subpænaed, and punaed them about twenty of them resided in Worcestershire. On Mon- sonable efforts

to prevent their day, the 17th, at 11 a. M., the defendant obtained and served attendance, or

their expenses a Judge's order to withdraw all his special pleas, leaving will not be althe general issue only on the record. The greater part tions of the plaintiff's witnesses were subpænaed to rebut the defendant's justifications. Those residing in town, and intended to have been so used, were countermanded by the plaintiff's attorney, who also resided in London; but he made no attempt to prevent the attendance of the country witnesses, thinking, that as they would all start on the Tuesday for town, there would not have been sufficient time for that purpose, although he might have written to the whole by the post on Monday. The jury found a verdict for the plaintiff.

On the taxation of costs the plaintiff's attorney claimed the expenses of the country witnesses, all of whom came up. To this the defendant's attorney objected, and contended that the plaintiff's attorney might have stopped them, had he written to them by Monday's post.

The Master (Goodrich) thought letters should have been written; but, to raise the question, he allowed the expenses of all the witnesses who attended.

A rule nisi to review this taxation having been obtained by Godson, and cause shewn

Patteson, J., thought letters should have been writ. ten; and that the costs of such of the witnesses as might

1834.

have received their letters in time to prevent their departure should be disallowed.

Rule absolute.

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terests.

BRAZIER v. BRYANT. The Court will

In this case a rule nisi was obtained for an attachment not interfere summarily to

for non-payment by Brazier of a sum of money, pursuant try the question to the Master's allocatur. On shewing cause the followthe part of an ing facts appeared :—Messrs. Clutton fCarter were emattorney towards his client's in- ployed as attornies by Brazier; and, in the course of that

employment, a matter in which he was concerned was referred by the Court of Common Pleas to an arbitrator. On taking up the award, the arbitrator's fee amounted to 871., the money for which was found by Brazier, and paid by Messrs. Clutton 8. Carter. The award was in favour of Brazier; and, on taxation of costs against the adverse party, an application was made to the Common Pleas to reduce the amount of the arbitrator's fees. That Court accordingly referred the matter to their officer, and he reduced the amount from 871. to 35l., and ordered the referee to refund; but the difference of 521. was never repaid. The bills of Messrs. Clutton g Carter, between them and Brazier, were afterwards referred to Master Goodrich, who, after taxing them, and adjusting the cash account, excluding the consideration of the 871., as that formed no part of the reference to him, made the balance in favour of Messrs. Clutton g Carter. Brazier afterwards applied to the Court to review this taxation; but the rules for this purpose were discharged with costs; and they not being paid, attachments were obtained. An application was then made against Clutton f Carter, to have the sum of 521., overpaid by them to the arbitrator, set off against the costs of the attachments, on the ground that it was their duty to have enforced repayment of that sum by the referee.

After cause had been shewn against the rule nisi obtained on this application

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