the defendant.

it rests on contract, and no principle has been shown to the court why the remote assignee should be held liable. (Blackburne, C. J.-The second assignee is legally liable to the head landlord, and, upon his default, the lessee becomes liable; in equity and justice the principal debtor is the assignee, he is primary liable.) The declaration only states an assignment from the plaintiff to (Moore, J.-The point for argument is, whether, admitting the authority of Burnett v. Lynch to be law, as respects lessee and his immediate assignee, it applies to a remote assignee.) Burnett v. Lynch is founded upon contract, and not upon a duty; there was an understanding between the parties at the time they entered into it, it was a legal contract, and the assignee was liable during the time he had the legal estate. None of these ingredients exist in the case now before the court. The decision in Wolveridge v. Steward, was reversed in the Court of Exchequer Chamber. (1 Cr. & M. 645). [The following cases were cited in the course of the argument-Mayor v. Steward, (4 Burr. 2440); Keppell v. Bailey, (2 M. & K. 517); Atkins v. Sealy, (Al. & N. 359); Grattan v. Diggles, (4 Taunt. 766).]

MacDonough, Q. C. in reply, was directed to confine himself to the form of the action. It was competent for the plaintiff to have declared either in tort or assumpsit, and to have described her cause of action either as founded on a breach of duty, or on a breach of promise implied by law from that duty. The assignee in possession is liable to the head landlord, and the lessee, if compelled to pay the rent, may recover it back from the assignee in an action of assumpsit for money paid to his use. Stone v. Evans (Peake's Add, Cas. 94). In Marzetti v. Williams, (1 B. & Ad. 424,) Lord Tenterden, C. J. says, "The plaintiff in Burnett v. Lynch might have declared as for a breach of contract. It is immaterial in such a case whether the action in form be in tort or in assumpsit," and Taunton, J. at page 426 of the same case, observes-“ The form of the declaration, whether it be in tort or assumpsit, makes no substantial difference, nor can it be any real ground of distinction whether the foundation of the action be an express or an implied assumpsit." In Burnett v. Lynch, Littledale, J., remarks" Where from a given state of facts, the law raises a legal obligation to do a particular act, and there is a breach of that obligation, and a consequent damage, there, although assumpsit may be maintainable upon a promise implied by law to do the act, still an action on the case founded in tort is the more proper form of action."

He was stopped by the Court.

BLACKBURNE, C.J.-This is an action on the case brought by the plaintiff to recover damages from the defendant for his breach of duty in not paying the rent reserved in the lease, and which the plaintiff in consequence was obliged to pay. The facts of the case may be explained in a few words. The plaintiff assigned all her interest in the premises to a person, who assigned to the defendant, and in neither of these assignments is there any covenant which would give a remedy for the breach now before the court. What then is the state of these parties? The defendant occupied the premises,

and was legally bound to pay the rent; it was emphatically his duty to do so, his interest was a beneficial one, and he ought to be liable to the burthens. The plaintiff was also liable, though deriving no enjoyment from the possession of the premises; both were liable upon one and the same covenant; the plaintiff was liable, because she had contracted under seal; the defendant was liable in point of law, he was also liable in point of conscience and duty. The case is similar in principle to that of joint obligors in a bond where they have equally received the money, and each can bring an action for the money paid for the use of the other, if the entire has been paid by one; they are both liable upon the same contract, and for the same amount, and each is circumstanced precisely as the parties now before the court. The only question remaining for consideration is, had the plaintiff a right to recover the money which she paid by compulsion, in this form of action, or ought she to have sued the defendant for money paid to his use, and Burnett v. Lynch is an authority to shew, it is optional with the party either to sue upon the implied assumpsit, or for the breach of duty.

CRAMPTON, J.-This is an extremely clear case. The action is not founded upon a contract express, but upon a breach of duty-a duty to exonerate the lessee under whom the party derives, and if Burnett v. Lynch be law, it rules the present case. The only distinction attempted to be made, and for which no foundation exists, was, that the action in Burnett v. Lynch was against the first assignee, whereas here it is against the second. The authorities referred to by Mr. MacDonough remove all difficulty; and establish that the party has open to him the alternative to sue in assumpsit or in tort; and it may further be collected from them, that an action on the case, founded on a breach of duty, is more proper than an action of assumpsit, founded upon the breach of a supposed promise. PERRIN and MOORE, J. J., concurred. Rule discharged.

COMMON PLEAS.-Nov. 25.

WATTERS v. Lidwell. Practice-Plaintiff in Error-Costs1 Geo. 4, c. 68.

A Plaintiff in error, who was plaintiff below, cannot be compelled to give security for costs. This was an application to quash a rule obtained by the defendant in error, that the plaintiff in error should give bail in error.

S. B. Miller, for the plaintiff in error, contended that the statute, 1 Geo. 4, c. 68, s. 8, did not contemplate the case of a plaintiff in error who had been plaintiff below. That the words of the statute were "that no execution shall be stayed, &c., unless plaintiff in error shall be first bound by recognizance, &c., to satisfy and pay if such judgment shall be affirmed, the debt, damages, and costs clearly meaning the defendant below only, as these words could not apply to the plaintiff below, against whom costs only are awarded. He cited Stephenson v. Higginson, (Bl. D. & O. 37).

Molesworth contra. The plaintiff in error ought to give security for costs. There is a direct conflict between the Courts of Queen's Bench and Exchequer on this point, and the question is, which should be followed. In the case of Dawson v. M'Entyre, (3 Ir. Law Rep. 443,) the Court of Queen's Bench decided that plaintiff in error, having been plaintiff below, should give security for costs. The case of Stephenson v. Higginson, in the Exchequer, was decided on the authority of O'Connell v. Mansfield, said to have been decided in this Court but not reported, and of some English cases. I have spoken to all the counsel engaged in O'Connell v. Mansfield, and they have informed me that the point was not decided in that case. As to the English cases, they were decided on the words of the English statute, 3 Jac. 1, c. 8, which is different in its terms from the Irish act, as remarked by Perrin, J. in Dawson v. M'Entyre. In the English act there is a preamble which states as the reason for passing the act, the delay occasioned in recovering debts, and is only conversant with delay of debts, and that may be very well held to apply only to the case of defendant below being plaintiff in error, but the language of the Irish act is general, "no execution shall be stayed by any writ of error in any case whatsoever, unless the plaintiff in error," &c., and Burton, J. mainly relies on that in Dawson v. M'Entyre. As to the argument derived from the combination of words "debt, damages, and costs," by adopting that the Court would be driven to exclude from the operation of the statute all actions of tort, and many actions of contract, where damages only are given, and that consequently, even with respect to defendants below being plaintiffs in error; no security for costs could be claimed unless "debt, damages, and costs" had been awarded against them. Those words, therefore, must be construed to mean debt, damages, or costs, according to the nature of the

clause

A warrant of attorney contained the following "It shall be lawful to and for the said R. D., his heirs, executors, administrators, or assigns, to issue one or more execution, or executions, upon the judgment, or judgments, to be entered upon these presents, for so much money as shall remain uncollected, or unpaid, to the said R. D., by the said defendant, without filing a suggestion of breaches, or taking any other or further legal proceedings to obtain such execution, or executions, further than the judgment, or the judgments, to be entered up as aforesaid."

The court refused to give effect to this stipulation, and set aside an execution issued on this judg ment, without a suggestion of breaches as required by 3 Wm. 3, c. 9, s. 8.

THE facts of this case were as follows: the defend. ant having been appointed a deputy barony cess collector in the county of Cork, had, with his sureties, passed the usual bond with warrant of attorney, duly to collect the rates and to account with the plaintiff. The bond was conditioned that the defendant should well and faithfully collect all such public money as he should, by the warrant of the plaintiff, be authorized and required from time to time, to collect in said barony and pay the same to the plaintiff weekly, and every week as he should collect the same, and complete each and every of such collections, and pay the full amount thereof, and of each of them, to the plaintiff, at, &c., one week before the first day of each ensuing assizes. The warrant of attorney contained the following clause, on which the present question turned;_ "That it shall and may be lawful to and for the plaintiff, his heirs, executors, administrators, or assigns, to issue one or more execution, or executions, upon the judgment, or judgments, to be entered upon these presents for so much money as shall remain uncollected or unpaid to the plaintiff, by the defendant, without filing a suggestion of breaches, or taking any other or further legal proceedings to obtain such execution, or executions, further than the judgment, or the judgments, to be entered up as aforesaid." The plaintiff, in accordance with this authority, issued an execution upon the judg ment entered on the bond and warrant, without suggesting breaches.

Joshua Clarke now moved, on behalf of the defendant, to set aside the execution and subsequent proceedings, on the ground that there was no suggestion of breaches, as required by the 3 Wm. 3, c. 9, sec. 8. It is quite settled now, that a judg ment entered on a bond and warrant of attorney is within the 3 Wm. 3, c. 9, s. 8, and breaches must be suggested, Stratton v. Codd (9 Ir. L. Rep. 1). This statute has been held peremptory and reme dial, and passed for the benefit of the defendant. (Lefroy, B.-The object of the statute was to enable the obligee to issue executions toties quoties, and if you issue only one execution under the proviso in the warrant, the judgment would be satisfied.) The case of Hurst & others v. Jennings (5 B. & C. 650) is analogous to the present one. It has been also held that the parties cannot, by express agreement, dispense with the legal obligation to issue a scire facias, Heath v. Brindley, (2 A. & E. 365). This statute is for the benefit of defendants, as previously to its enactment, the practice was to issue execution for the entire amount of the judg

ment.

Leahy, contra-This statute is for the benefit of the plaintiff, to enable him to issue successive executions, according as there are breaches. The clause here is frequently inserted in warrants of attorney (9 Bythewood 567). The case of Hurst v. Jennings does not apply; the authority to dispense with a scire facias being by deed and not by the warrant. Besides, the contrary was decided in Morris v. Jones (2 B. & C. 242); S. C. 3 D. &

plainly indicated in subsequent authorities. The distinction is that the statute of Westminster was rather in aid of plaintiffs than defendants. Thus in Hiscocks v. Kemp (3 A. & E. 676) the court deal with the objection as to issuing executions without a scire facias; but they do not there decide that it was competent to the parties by agreement to violate the act, but they refer to the terms of it, and put upon it a construction precisely the opposite of that which the statute of William has received, namely, that the statute of Westminster was for the benefit of plaintiffs rather than defendants. It has been also suggested in the course of the argument that by the 6th of Anne the plaintiff was bound, at his peril, to indorse the amount claimed on the back of the execution, and that therefore the statute of William is no longer so necessary for the protection of the defendant as it was originally found; but, besides that, the statute of Anne was passed subsequently to that of William, and consequently cannot affect the construction to be put upon the latter; it does not afford any means of ascertaining the amount of the executions in the present instance, as the bond is here conditioned for the due collection of the cess, the necessity for scertaining, by a verdict of the jury, the breaches on which plaintiff relies, exists here. The mischief guarded against by the statute was the hardship of seizing goods, or issuing a ca. sa., without any means being afforded of ascertaining the extent of the plaintiff's demand. That the defendant here might resort to a court of Equity is quite plain; to obviate the necessity for which was the main object of the statute, and this case appears to be as much within the mischief as if the contract in question had been entered into immediately after the statute of William, and before that of Anne. PENNEFATHER, B.-I fully concur with my Lord Chief Baron. The nature of the security, and its object, have been fully considered; and, however great the inconvenience which may arise from the necessity to assign breaches in the present case, we must decide the question upon the general principles of law. The condition of the bond here is, not merely to pay over the sums collected, but also to collect the cess with due diligence; and the breach complained of may be the non-collection, and thus the damages be very uncertain. Therefore, whatever inconvenience might have been removed by the statute of Anne, in cases where the bond is conditioned for payment of money, and the obligor knows whether the execution is overmarked or not, that statute does not remedy the inconvenience, where, as in the present case, the damages are unascertained. For my own part, I should doubt very much if the statute of Anne does not go far to vary the effect of that of William; but that case is not now before us, and therefore it is not necessary to pronounce any opinion upon it; but I quite agree that in the present instance the proceedings ought to be set aside. RICHARDS, B.-I concur in the judgment of the I will not say that this agreement had in it anything positively illegal. Such an arrangement as the present might, in many cases, be found extremely convenient and conducive to public advan

court.

tage.

There are many cases where subordinate officers are called upon to pass such bonds, and the necessity for filing a suggestion of breaches might create delay and difficulties in enforcing the remedies upon such judgments, and therefore I was at first disposed to struggle against holding an assignment of breaches necessary in this case; but, on more mature reflection, I have come to a different con clusion. If this were a dealing out of court, the parties might, perhaps, avail themselves of this arrangement; but where the plaintiff seeks to enforce his rights under the process of the court, it is not competent to him to rely on a previous ar rangement to waive the act of Parliament by which such proceedings are regulated. To allow this, would be, in many cases, to open a door to oppres sion; because the plaintiff, by this arrangement, constitutes himself the arbiter of the amount of damages. But it is urged that a court of Equity is open to redress this grievance; but it has been held that one of the objects of this act was to prevent the necessity of resorting to an equitable tribunal; and if such a course were sanctioned, how great an opening would we be making for litiga tion; how impossible would it be to discharge the general business of the court if we were called upon to determine upon affidavit the extent of the breach committed and damages actually sustained.

LEFROY, B.-I concur in the judgment of the court. In my opinion, a defendant cannot bind himself to waive the provisions of this statute. There is a maxim of law-" Quilibet potest renunciare juri pro se introducto." That maxim, however, does not apply to cases of this species. Courts of law apply it to rules which confer a right upon parties, not to rules and laws which are intended to afford protection from the abuse of a privilege which the party has, in the first instance, been the means of giving. This statute has in view to protect a man from the consequences of his own act. The policy of the act is to guard against the oppressive use of a power which a party gives against himself when he enters into a penal bond. Courts of Equity act on this principle in cases of mortgages, where an attempt is made to bar the right of redemption by the agreement of the parties, and refuse to give effect to such a contract. So when the legislature has taken precautions to guard against the oppressive use of a power given by a party's own act, the court should not suffer him to contravene this act. This is not a jus pro se introductum. This contract would be one violating the principle of the act of Parliament, and a contract to violate the law cannot be a valid one, Besides this reasoning on principle, we have an authority almost precisely in point. As to the argument rested on the effect of the statute of 6 Anne, it does not appear to obviate the difficulty; for if the parties, by their contract, could evade the act of William, they could, on the same prin ciple, by contract get out of the provisions of the act of Anne.

Motion granted without costs.

ROLLS COURT.

ARCHBISHOP OF DUBLIN, Plaintiff.-THOMAS,
LORD TRIMLESTON, RICHARD FARREL AND
OTHERS, Defendants.—June 12.
ARCHBISHOP OF DUBLIN, Petitioner.-THOMAS,
LORD TRIMLESTON, Respondent.-3 and 4 Vic.
c. 105, sec. 27.

A decree against two for the payment of costs is joint and several, and the registering of such decree, under the 3d and 4th Vic. c. 105 sec. 27 does not alter its effect.

Where a decree declared "that the defendants A and B should pay to the plaintiff his costs of the case when taxed and ascertained." Held that the effect was not necessarily to establish contributions in moieties between the parties. But the proportion of contribution will depend upon the special circumstances of the case. Semble.-Costs in Equity are not in the nature of damages but of a debt.

This case came before the court on a motion to shew cause against the appointment of a receiver over the defendant's lands, under the decree in the cause of the Archbishop of Dublin v. Lord Trimleston and others. The bill in the cause had been filed to recover certain chief rents, payable out of one of the estates of Lord Trimleston, to the Archbishop of Dublin. The defendant, Richard Farrel, was made a party as executor of the late John Thomas Lord Trimleston, (who had been tenant for life of the property in question) The final decree in the suit, was pronounced on the 9th of February, 1846, and declared, "that the defendants, Thomas Lord Trimleston and Richard Farrell, do pay to the Plaintiff his costs of this cause, when the same shall be taxed and ascertained." The costs had been taxed and certified to the amount of £421 18s. 2d. The plaintiff demanded the whole of this sum from Lord Trimleston, the respondent. Lord Trimleston refused. The petitioner had obtained a conditional order for a receiver on the 22nd of May, under the provisions of the 27 s. of the 3 and 4 Vic. c. 105. The respondent, Lord Trimleston, served a notice on the petitioner, and Mr. Farrell, as cause, submitting that the conditional order be discharged, on payment of one moiety by the said respondent, or that upon the respondent paying into court, or to the petitioner, the sum of £421 18s. 2d. all proceedings in the said petition might be stayed, and that Richard Farrell be directed forthwith to pay to the respondent oue moiety of the petitioner's taxed costs in the cause, or that the respondent be at liberty to proceed in the name of the petitioner, as petitioner in the cause for the recovery of said moiety, against the defendant Richard Farrell.

Baldwin, Q.C. with Christian, Q.C. for Lord Trimleston, contended that as the decree was joint, and as Lord Trimleston had tendered his moiety, Mr. Farrell was clearly liable for the remainder, and cited (Beames on costs 117,) and (2 Fowler's Ex. P. 299.)

Radcliff, Q.C. with Gayer, Q.C. for the Archbishop. The Archbishop is not to be expected to take upon himself the apportionment of the costs, he having obtained a decree against both of the defendants for his costs. The decree in point of law

is a joint and several order to pay costs, Ex parte Bishop (8 Ves. 333; 3 Dan. C. P. 91); the plaintiff therefore may proceed for the whole against both or either.

Hughes, Q.C. with F. Walsh, and James Farrell for the defendant Richard Farrell. The present application on the part of Lord Trimleston against his co-defendant, Mr. Farrell, is unsustainable; in the first place, it seeks that Mr. Farrell should contribute a moiety. If Mr. Farrell is liable to contribute, that liability must be measured by. his interest in the subject matter of the suit, and, also by the line of defence taken by him in the cause. The cases of contribution in Equity, proceed upon the assumption, that the parties stand in æquali jure, Hartley v. O'Flaherty. (Lloyd Goold, T. P. 208). The interest of Mr. Farrell, is less than that of Lord Trimleston. In his fiduciary character he could not admit the plaintiff's right whilst contested by the principal defendant, but did not, with Lord Trimleston, file a discharge in the Master's Office, or take exceptions to the report. The right to contribution can only be enforced by a plenary suit, and not on an interlocutory application, where the court cannot look into the equities between the parties as to the amount of their respective contributions, Ex parte Wilmshurst, (1 Glyn. Jam. p. 4, confirmed an appeal Id. 244), In Pitt v. Bonner, (You. & Col. V.C. 670), contribution was decreed on the consent of the parties, but except on consent it can only be enforced by bill in Equity, or action at law. Another principle is, that costs in Equity are in the nature of damages, Lord Trimleston has no claim to enforce contribution Corporation of Burford v. Lenthall, (2 Atk. 551,) Attorney-Gen. v. Wilson, (1 Cra. & Phil. 1).

Christian, Q.C. in reply -The decree of the 9th February, 1846, gives the same relief against both, and costs against both; Mr. Farrell cannot be considered a mere nominal defendant, as his answer is similar to that of Lord Trimleston. The effect of the decree was to establish contributions between parties in moieties, and in such a case, a reference to the master is unnecessary. This is a petition for a receiver on foot of a joint decree, at law it was necessary that the execution and elegit should be joint; the same necessity arises in the case of a receiver, which is an equitable execution.

MASTER OF THE ROLLS.-I am of opinion the Archbishop is entitled to retain this receiver. There is no doubt that in respect of a joint judgment, proceedings must be taken against all parties liable, I will therefore, if pressed, give liberty to the petitioner to amend. With regard to the question whether a decree against two generally for the payment of costs, is to be considered on the same footing as a joint judgment, I find in (3 Daniel, c. p. 9) the case ex parte Bishop cited as establishing that such an order is joint and several, and that in a case where one party had absconded, proceedings against the other were held valid. If that be the nature of the decree previous to the passing of the 3 and 4 Vic. c. 105 s. 27, which gives decrees the effect of judgments, I am of opinion that the act does not alter the nature of the decrees, but that the proceedings given thereby, must still be