answered. On moving for this rule my Brother Channell said, that the Lord Chief Justice had left to the jury the question, whether the defendant had wrongfully converted the bill; and he argued, that that question was not raised by the plea of “not guilty," but only the conversion in fact; and he said, that upon the Lord Chief Justice so leaving the case to the jury, the plaintiff's counsel had a right to be nonsuited and to insist on the misdirection in point of law. It has been decided, that under the new rules the plea of not guilty in an action of trover only puts in issue the conversion in fact, and not the wrongfulness of the conversion. Whether the facts proved will amount to a conversion in fact is not now the question, but only whether, upon the state of this record, the learned Chief Justice was leaving the question to the jury in a proper way, when the plaintiff's counsel interposed. There is on this record a plea of not possessed, and that puts in issue the plaintiff's right of possession. It appeared in evidence, that this bill was placed in the hands of the defendant, for the purpose of being discounted for his own use. He did not discount it in the regular way by going to a bill broker and getting the money for it from him, but he sends it to a bill broker and directs him to put it to his account, if he is satisfied with the responsibility of the acceptor. That in my opinion is, upon its being carried out, a discounting of the bill. But then the plaintiff would have no right to the possession of the bill unless the defendant had employed it in a manner not authorized under the original agreement. If the bill had been given to the defendant to discount it for the use of the plaintiff, and instead of doing so, he had placed it to his own credit, that would have been a wrongful conversion, and the moment he so conducted himself, the plaintiff would have had a right of possession in the bill; but here it became essential for the jury to see, whether there was a wrongful conversion, for the purpose of shewing whether the plaintiff had a right of possession; and the learned Judge was putting it to the jury, that if, what the 1843. WILKINSON v. WHALLEY. 1843. WILKINSON v. WHALLEY. defendant had done had been with the assent of the plaintiff, the plaintiff was not entitled to recover. Nor would he be, in my opinion; and it appears to me, therefore, that as the plaintiff chose to be nonsuited there was no misdirection, in law, and he is out of Court upon this motion. CRESSWELL, J.—I also am of opinion that this rule must be discharged. It appears that the Lord Chief Justice left the case to the jury, directing them to find for the defendant, if they were of opinion that the defendant had dealt with the bill according to the authority given to him by the plaintiff, and I think that direction was justified by the state of the record. It appears that the plaintiff had parted with the possession of the bill, and had given a defeasible property in it, at all events, to the defendant. He had given it to the defendant to use it as his own in a certain manner, and the defendant's right would not be defeated until he had used it in some other manner. I cannot understand why the plaintiff should make such a stipulation as he did. The defendant had a demand on him, and he said, that if he could use it in reduction of that demand it was to be his; if not it was to be returned. The defendant did use it in reduction of his demand on the plaintiff, and the plaintiff had no right to the possession at the time after it had reached the hands of Messrs. Gandell and Co. I wish also to say a word on the subject of the election of the plaintiff to be nonsuited. According to my view the proposition laid down by my Brother Channell is a great deal too wide. He says, "that in all cases where counsel elect to be nonsuited, because the Judge has not left to the jury that which is the true question in the cause, the plaintiff may afterwards come to the Court to set that nonsuit aside." I think that is too broad a proposition. There may be cases where the plaintiff may make such a proposition under such circumstances, but I do not think that in all cases the same rule should prevail. Rule discharged. 1843. WITHERS v. SPOONER. On the Where a rule ment as in case of a nor nisi for judg. was discharged in H. T., on the ground of a defect in the which it had been moved, affidavit upon (for that it did not shew whe ther the cause was a was a town or a country cause, On and that it was not clear, therefore, that the had been guilty of a default in not proceeding to trial,) and a second rule obtained in the DOWLING, Serjt., shewed cause against a rule for judgment as in case of a nonsuit. He objected that this was a renewal of an application of a like description which had been already unsuccessfully made to the Court. the 14th of January the defendant had applied upon an affidavit, shewing that issue was joined in the previous Trinity Term; but that rule was discharged, upon ground of a defect in the affidavit, which did not shew whether it was a town or a country cause, so that if it country cause the application was made too soon (a). the 21st of January, the motion was renewed on an amended affidavit, stating that the venue was in Middlesex, but cause was shewn against that rule, and it was eventually discharged, upon the ground that it was merely the renewal of an application which had failed, on account of the insufficiency of the materials on which it had been made in the first instance. It was now contended that the same answer might be successfully given to the present rule, and that the Court would not sanction the frequent renewal of such motions. [Cresswell, J.-There has been an assize since the last motion, and therefore, whether, it be a town or a country cause, the plaintiff would now be entitled to move for judgment as in case of a nonsuit]. The continuous delay was former applipart of the same default upon which the motion had been originally made, and the defendant still fell within the rule which required a party to come to the Court in the first instance fully prepared with the necessary materials. There had been no entire default since the first motion, and the Court would treat the case as if, after that motion had been disposed of, the plaintiff was entitled to go on afresh. He offered a stet processus. (a) Ante, vol. 2, p. 884, N. S. which an affidavit was produced supplying this defect,) was also discharged, ground that it upon the was a mere renewal of the cation upon amended ma terials; the Court never theless held, that the plain tiff was enti tled to renew his motion in the following Easter Term. VOL. III.- -N. S. C D. P. C. 1843. WITHERS v. SPOONER. Gaselee, Serjt., in support of the rule, contended that there had been a new default in not going to trial at the sittings after Hilary Term, and that the defendant was entitled to come to the Court on that default. This could not be looked upon as a mere renewal of the original application. TINDAL, C. J.-The objection of my Brother Dowling I think cannot prevail. The rule will only be discharged upon the plaintiff giving a peremptory undertaking or a stet processus. Rule accordingly. Where judg AGASSIZ and Wife v. PALMER. TALFOURD, Serjt., shewed cause against a rule ob ment was obtained on behalf of the defendant, for setting aside an order tained in an action in 1831, of Lord Abinger, C. B., dated the 20th March, 1843, tofendant went gether with a writ of ca. sa. issued thereon, and for the and the de abroad, and re then sued out a sci. fa., to revive the on that sci. mained there discharge of the defendant out of custody. It was an acuntil 1842, and tion on a bond, whereby the defendant agreed to pay to the plaintiff the female plaintiff, a certain annuity of 100l. per annum, upon condition that she should not annoy or molest him or judgment, and his wife. The action was commenced in the year 1831, by fa. upon an the female plaintiff only, who was then unmarried, and the affidavit of the presumed plaintiff sought to recover a sum of 50l., in respect of half a year's annuity, alleged to be then due. The defendant pleaded to the action, and stated that the plaintiff had broken the condition of the bond, but upon the trial, the plaintiff recovered a verdict for 50%., and the judgment Chambers, and thus obtained remained as a security for all future pay intention of the defendant to quit England, procured a writ of capias, by order of a Judge at the defendant was arrested under that writ, the Court ordered the defendant to be discharged out of custody for if proceedings by sci. fa. are merely a continuance of the original action, and do not constitute a new suit, the power to arrest is taken away by the 1 & 2 Vict. c. 110, s. 5, and if they are to be viewed as the commencement of a fresh action, no capias can be granted, as the 1 & 2 Vict. c. 110, ss. 2 & 3, refer only to actions where the defendant was liable to arrest at the time of the passing of that act. ments. Shortly afterwards, the defendant went to India, and he finally returned to England on the 13th of October, 1842; the female plaintiff then sued out a writ of sci. fa. to revive the judgment, no payment having been made either in respect of that judgment, or in respect of any subsequently accruing debt, and also to introduce the name of her husband on the record. The order for the arrest of the defendant, which was now sought to be set aside, had been granted by Lord Abinger, C. B., at Chambers, upon the scire facias, on an affidavit, stating that the defendant was about to quit England, and to retire to live in France. The main question which now arose, was, whether, under the 1 & 2 Vict. c. 110, such an order could be made in proceedings by sci. fa. It was submitted that the operation of that statute was confined to cases of arrest before final judgment. The final judgment in this action, however, had been obtained in 1831, and the effect of that judgment was to put an end to all proceedings in the action. The question, therefore, which arose, was, whether a scire facias was a new action, to be governed by the same rules as an original suit, and it was submitted that it was, and that the order of the learned Judge was properly made. Formerly, a defendant could not be arrested in an action on a judgment, if he had been arrested in the original suit. Bishop v. Powell (a), Kinnear v. Tarrant (b). This case was not open to that observation, for the defendant had not been held to bail in the action. Sir Thomas Wilde, Serjt., in support of the rule. It was obvious, that the Legislature had no intention to extend the power of arrest to any cases in which it did not before exist. Although proceedings by sci. fa. had, for some purposes been considered in the light of a new action, and to possess some of the incidents of a new action, that rule was not of universal application, and had no operation with 1843. AGASSIZ and Wife v. PALMER. |