the costs; but if it be a libel, Mr. Miller cannot recover over. This witness has, therefore, an interest to make it out a libel; and, therefore, he comes now to speak against his interest. Lord TENTERDEN, C. J.-I think it a very doubtful matter; there is a great deal of doubt. I should, therefore, be disposed to receive the evidence. Before the witness was examined, Mr. Miller gave him a release. Lord TENTERDEN, C. J.-That will prevent Mr. Miller from calling upon the witness, but it will not prevent any of the other members from doing so, unless, indeed, it prevents Mr. Miller from suing any of them. Mr. Eaton was examined. For the defence, evidence was given in support of the pleas of justification. Verdict for the defendant. Brougham, F. Pollock, and Kelly, for the plaintiff. Scarlett, A. G., and Follett, for the defendant. [Attornies-J. Harrison, and T. Miller.] 1829. HUMPHREYS ย. MILLER. See the cases of Goldstein v. Foss, ante, Vol. 2, p. 252, and Add. iii.; and Getting v. Foss, ante, Vol. 3, p. 160. 1829. July 10th. by one person to sue out a commission of POCOCK v. RUSSELL, Gent. Where an attor- ASSUMPSIT for goods sold and delivered. The deney is employed fence was a set-off; and it appeared that the defendant, who was an attorney, had been employed by the plaintiff to bankrupt on the sue out a commission of bankrupt on the petition of a person named Wilkins; and his bill for procuring the commission came to more than the amount of the plaintiff's claim. petition of another person, the person so employing the attorney, and not the petitioning creditor, is the person liable to pay the attorney the costs of suing out the commission. Scarlett, A. G., for the defendant, contended that, under these circumstances, the defendant was entitled to a verdict. F. Pollock, for the plaintiff, submitted that Wilkins, and not the plaintiff, was liable to pay for the commission. He cited Finchett v. How, 2 Camp. 275 (a); in which Lord Ellenborough held, that the petitioning creditor and another could not be sued jointly; and contended that, a fortiori, a third person could not be sued alone. (a) That was an action by the solicitor, against two persons who had been chosen assignees of a bankrupt, to recover the costs of suing out the commission; one of the defendants was the petitioning creditor, and it was objected that, as the petitioning creditor was, by the act of Parliament, 5 Geo. 2, c. 30, s. 25, to sue out the commission, "at his own costs and expenses," another person could not be jointly liable with him. For the plaintiff it was contended, that if both the defendants had retained the plaintiff to sue out the commission, both would be liable to pay him: But Lord Ellen borough said, that the words were express, that the petitioning creditor should sue out and prosecute the commission, till the choice of assignees, at his own costs and expenses; and that these costs and expenses, therefore, could not be recovered in a joint action against him and another person. The case of Finchett v. How, was decided on the stat. 5 Geo. 2, c. 30, (now repealed); but, by the bankrupt act, 6 Geo. 4, c. 16, s. 14, it is enacted, "that the petitioning creditor or creditors shall, at his or their own costs, sue forth and prosecute the commission until the choice of assignees," &c. Lord TENTERDEN, C. J.-Wilkins, in this case, never was liable, and never could be made liable. The plaintiff is the employer of the defendant, and must pay him. Therefore, the defendant is entitled to the verdict. Verdict for the defendant. F. Pollock and Starkie, for the plaintiff. Scarlett, A. G., and Hutchinson, for the defendant. [Attornies-T. Pocock, and In person]. 1829. Рососк v. RUSSELL. LOMI v. TUCker. ASSUMPSIT for the price of various articles of virtu, and among them two pictures, charged in the particulars of demand as having been agreed for at 951. The plaintiff was an Italian doctor, and the defendant an attorney. It appeared that the plaintiff had represented the pictures in question as "a couple of Poussin's." It was admitted, that they were not originals; but it was contended, on the part of the plaintiff, that the price would shew that they were never intended to be sold as originals, which would be of much higher value, and that they were only sold as very good copies. Lord TENTERDEN, C. J., left the question to the Jury, saying-If you think that the defendant bought these pictures, believing, from the plaintiff's representation, that they were original pictures painted by Poussin, then I am of opinion that the defendant is not bound by his bargain. Gurney, for the plaintiff.-The defendant has not offered to send the pictures back. 1829. LOMI ບ. TUCKER. Lord TENTERDEN, C. J.-If he had returned them, I should have thought that you could not recover any thing; but as he has not, I think you are entitled to recover whatever the Jury may think to be the value. Some money had been paid into Court, and the Jury found a Verdict for the defendant. Gurney and Busby, for the plaintiff. J. Williams, for the defendant. [Attornies-English & D., and In person]. See the cases of Milner v. and Cash v. Giles, ante, Vol. 3, p. Tucker, ante Vol. 1, p. 15; Perci val v. Blake, ante Vol. 2, p. 514; 407. July 28th. In an action against the sure of rates, to re MIDDLETON and Another v. FROST. DEBT. The declaration stated, in substance, that the ty of a collector defendant, in the lifetime of one Squire, who was collector of rates for the second division of the bishop's liberty of East Brixton, became surety for the due payment by him collector, an in- of the sums collected; and that Squire collected certain cover sums re ceived and not paid over by the habitant of the place is admissi- sums, and did not pay them over, whereby the defendant became liable to make good the deficiency. Pleas-Non ble ex necessi tate to prove payments to the est factum, and several special pleas. collector, al though, in the event of the surety's failing to make good the deficiency, he would be liable to a fresh assessment. To prove the payment of some rates to Squire, as collector, an inhabitant of the division was called. Brougham, for the defendant, objected that he was an interested witness. Lord TENTERDEN, C. J.-You say he is not competent; and if any one else were called, you would say that this witness was the only person who could prove the fact. This verdict will not be evidence either for or against him. Brougham.-If there should be a new assessment, and a refusal to pay, then it must be shewn that they had failed to recover against the surety of the collector. Lord TENTERDEN, C. J.-I think he is competent, from the necessity of the case. If his evidence is not received, there will be no proof at all. Verdict for the plaintiff. Scarlett, A. G., Gurney, and Hutchinson, for the plain tiffs. Brougham and Chitty, for the defendant. [Attornies-Marson & S., and Dodd.] 1829. MIDDLETON v. FROST. REEVE qui tam v. STAREY and Others. DEBT for penalties under the statute 47 Geo. 3, sess. 2, c. lxviii. (a). The declaration stated that the defendants, being venders of and dealers in coals, did, within the city of London, &c., knowingly and wilfully, sell to one R. A. Coward one sort of coals, for and as a sort of coals which they really were not; that is to say, five chaldrons of a sort of coals called "Eden Main coals," for and as a sort of July 29th. Where the vender of coals himself inserts in the vender's scription of them, it is not ticket the de necessary, in an action for penal ties under the 47 Geo. 3, c. lxviii. to produce the ship-meter's certificate, required by the 55th section of that statute. within the port of London, &c. &c. |