said to have been brought for the benefit of Wickers?] It is so suggested. But neither of the grounds assigned, it is submitted, is sufficient to call upon the plaintiff to give security. It was undoubtedly held by the Court of Exchequer in the case of Perkins v. Adcock, 14 M. & W. 808,† 3 D. & L. 270, that, where a plaintiff is bankrupt or insolvent, and has assigned the debt for which the action is brought, and is suing for the benefit of the assignee, the court will compel him to give security for costs. But there are several cases opposed to it. Thus, in Anonymous, 2 Taunt. 61, this court refused to compel security for costs, on the ground that the plaintiff was a bankrupt, or in Newgate. So, in Snow v. Townsend, 6 Taunt. 123 (E. C. L. R. vol. 1), 1 Marsh. 477 (E. C. L. R. vol. 4), it was held, that the court will not prevent one who has assigned his property under an insolvent act from suing for a debt due to him before his assignment, the assignee refusing to sue; nor will the court compel him to give security for costs. Again, in Morgan v. Evans, 7 J. B. Moore, 344 (E. C. L. R. vol. 17), the court refused to require the plaintiff to give security for costs, although it was sworn that he was insolvent, and that the action was brought in his name for the benefit of a third person, who was alone beneficially interested in the result. There is another class of authorities, to which the attention of the courts does not seem to have been invited in any of these cases. It *sometimes happens that the assignor is unwil[*292 ling to allow an action to be brought in his name for the recovery of the debt; but the courts have held that the assignee has an absolute right to use the name of the assignor. (a) To require security in such a case, might be requiring the assignee to do what was impossible, and so he might be deprived of the benefit of the assignment. [JERVIS, C. J.-Where a party acquires a right to sue, by reason of the insolvency of the nominal plaintiff, I see no hardship in calling upon him to give security for costs. It is, after all, a mere matter of practice the justice of the matter is against you.] The case of Perkins v. Adcock is the only authority which at all presses.

JERVIS, C. J.-The habit of this court is, to adhere to the authority of decided cases; for, it is essential that the practice should be consistent and uniform. The case of Perkins v. Adcock, which we are called upon to overrule, has for several years been acted upon : and I, for one, am not disposed to disturb it.

CROWDER, J.-Perkins v. Adcock is cited in the 8th edition of Archbold's Practice, p. 1233, and I believe has never been doubted until this moment.

The rest of the court concurring,

(a) See Pickford v. Ewington, 4 Dowl P. C. 453.

Rule refused.

*293]

*HOLMES v. SERVICE. Nov. 24.

Where the defendant is a lunatic, the court has no power, under the 15 & 16 Vict. c. 76, s. 17, to allow the plaintiff to proceed as if personal service of the writ of summons had been effected, unless it can be made to appear that the writ has come to the defendant's knowledge, or that he wilfully evades service.

LUSH moved for leave to proceed as if personal service of the defendant with the writ of summons had been effected, pursuant to the 17th section of the Common Law Procedure Act, 1852,-15 & 16 Vict. c. 76,-which enacts that "the service of the writ of summons, wherever it may be practicable, shall, as heretofore, be personal; but it shall be lawful for the plaintiff to apply from time to time, on affidavit, to the court out of which the writ of summons issued, or to a judge; and in case it shall appear to such court or judge that reasonable efforts have been made to effect personal service, and either that the writ has come to the knowledge of the defendant, or that he wilfully evades service of the same, and has not appeared thereto, it shall be lawful for such court or judge to order that the plaintiff be at liberty to proceed as if personal service had been effected, subject to such conditions as to the court or judge may seem fit."

The affidavit upon which the motion was founded, stated various attempts to serve the defendant at his dwelling-house, but that the deponent was unable to see him, his family representing him to be ill and under the care of a keeper, and refusing access to his room or to convey the process to him: the affidavit then went on to state, that one of the defendant's sons, being at length prevailed upon to go up stairs to speak to the defendant on the subject, returned saying "he could not make head or tail of him," and that he was quite mad; that the deponent called upon one Drage, a medical man who was attending the defendant, for the purpose of satisfying himself of the truth of the son's statement; and that Drage informed the deponent that the defendant was quite mad and incapable of *attending to business, and danger*294] ous to any stranger, and that in fact he (Drage) would not like to see him upon anything of an irritating nature. Lush submitted that this was ample evidence that the service of the process was evaded. [WILLIAMS, J.-Your affidavit shows that the defendant is of unsound mind. Does it show that the process came to his knowledge, or that he evades service?] It is submitted that it does sufficiently show both. [JERVIS, C. J.-I see no evidence whatever that the writ has come to the knowledge of the defendant. CROWDER, J.--There is no evidence either that he understood the matter or evaded service of the writ. Paterson, amicus curiæ, referred to a case of Ridgway v. Cannon, 23 Law Times, 143, where the Court of Queen's Bench held that the statute gave them no authority to act in such a case, but suggested, as a means of extricating the plaintiff from the difficulty, that the keeper should be

informed that it was his duty to allow the writ to be served on the defendant, or else application might be made for a habeas corpus for the purpose of bringing up the lunatic, so that service might be effected.(a)] Before the passing of this act, the plaintiff had a remedy in such a case as this, by distringas. (b) The object of the present enactment was, to render the service of process more easy: and the court will, if possible, so construe the words as to effectuate the intention of the legislature.

JERVIS, C. J.-This is probably, as the Court of Queen's Bench seem to have thought in Ridgway v. Cannon, an omission in the act: but we cannot help the plaintiff.

The rest of the court concurring,

Rule refused.

(a) In that case, the defendant was confined in a private lunatic asylum. But see In re Child, ante, p. 238.

(b) See Blake v. Cooper, 11 C. B. 680 (E. C. L. R. vol. 73).

*DEACON v. GRIDLEY. Nov. 9.

[*295

The plaintiff declared, in the first count, in debt for railway sharos; in the third, in trover for certificates for shares; in the fourth, in detinue for the certificates for shares mentioned in the third count.

The fifth count stated, that, at the time of the writing the letter and making the contract therein and in that count mentioned, the claims of the plaintiff in the first, third, and fourth counts had severally arisen and accrued in manner and form as therein expressed, and the defendant ought to have paid or satisfied the plaintiff for and in respect of those several claims; that the defendant had from time to time requested the plaintiff to give him time, and to forbear and grant to him indulgence for the payment or satisfaction of the said claims, which the plaintiff had done; and that the defendant, being insolvent and unable to pay or satisfy those claims, and to obtain further time, wrote to the plaintiff as follows,-"That I have wronged you in not having (because incapable) repaid or returned that which you lent me (thereby meaning and referring, amongst other loans, to the said loan of the said certificates in the first count mentioned), it were useless for me to deny: but, how I have wronged you in feeling, seeing that I have ever, as I do now, entertained for you the sincerest gratitude and regard, I know not, beset as I am in difficulties on every side, not resulting from extravagance, but from bad fortune. I know how worthless are promises of reparation, how wholly disregarded are entreaties for indulgence (thereby meaning that the defendant did then entreat and ask for indulgence from the plaintiff for the payment or satisfaction of the claims of the plaintiff). Yet will I say that the most anxious endeavour and hope of every future day shall be, to prove my regard and gratitude in the only way in which the world esteems the proof, by restoring to you all that I owe (thereby meaning, amongst other things, the payment or satisfaction of the said claims of the plaintiff)." The count concluded with an averment, that, in pursuance of that letter, and on the faith of the promise of the defendant therein contained, the plaintiff, at the request of the defendant, did continue to give him time, and to forbear and grant him indulgence and further time for the payment or satisfaction of the said claims; but that, although a reasonable time had elapsed for the performance by the defendant of his said contract in the said letter contained, yet the defendant had not restored to the plaintiff all he owed, but had neglected and refused so to do, &c. :

Held, on demurrer to the fifth count, that the letter showed no request for forbearance, nor any consideration for a fresh promise by the defendant to pay what he already was liable to pay; and that, if it did amount to a fresh promise to pay, it was a promise without consideration. THE first count of the declaration stated, that, before and at the time of the making of the contract in that count mentioned, the plaintiff was the holder of and entitled to fifty certificates of fifty York and Newcastle preference shares, and also one hundred certificates of one hun

dred shares in an undertaking called The Demerara Railway Company, which several shares and certificates were contained in certain paper writings; and thereupon the plaintiff, at the request of the defendant, lent to him the said certificates, to be returned *by the defend*296] ant to the plaintiff on request; yet the defendant, although he was afterwards requested by the plaintiff to return to the plaintiff the said one hundred certificates of the said one hundred shares in the said Demerara Railway Company according to his contract, neglected and refused so to do, and also kept and detained the same from the plaintiff for a long and unreasonable time, contrary to the said contract of the defendant and that thereby, and by reason of such wrongful neglect and refusal, and such wrongful keeping and detaining of the same, the plaintiff could not sell or dispose thereof as he otherwise might and would have done, and could not transfer the same according to the regulations of the said Demerara Railway Company, and by means of the premises not only lost the value of the last-mentioned certificates, and of the deposit of money which had according to those regulations been before then paid for and in respect of them, but was obliged, under and by virtue of those regulations, to pay divers calls of money from time to time made for and in respect of those certificates and shares, and had lost the value of those calls; and, the same certificates and shares having become of little value, and unsaleable, the plaintiff had by reason of the premises, and the wrongful default of the defendant, been deprived of all the benefit of the sale thereof when the same might have been sold, and had further incurred the burden and loss of the payment of the said calls, and had also lost the interest of the money which he had so been necessarily obliged to pay for such calls, from the several times when the same were payable and paid, to the time of the commencement of this suit, and had been otherwise injured and damnified. The second count stated, that, the plaintiff being such holder and entitled to the several certificates in the first count mentioned, and the contract between the plaintiff *and the defendant having been *297] made and broken as was therein expressed, and the defendant having become insolvent, and being unable to satisfy the claim of the plaintiff in respect of the breach of contract by the defendant in the first count mentioned, and being also unable to satisfy certain other claims and demands of the plaintiff upon the defendant, thereupon, in consideration that the plaintiff would forbear and give time to the defendant for a month in respect of that claim and the said other claims and demands, the defendant promised the plaintiff that the plaintiff should in the end come out without a farthing's loss, and that the defendant should then be either out of the plaintiff's debt, that is to say, would either satisfy the last-mentioned claim of the plaintiff, and the said other claims and demands of the plaintiff upon the defendant, or that the defendant would secure the same to the plaintiff's satisfaction:

Averment, that the plaintiff did accordingly forbear and give time to the defendant for a month in respect of that claim and the said other claims and demands, according to the said contract, and that all things necessary to entitle the plaintiff to commence and maintain the action. as to that second count had been observed and performed and had happened; and that afterwards the defendant departed from this realm to parts beyond the seas, that is to say, to California, and then became and still was solvent and able to satisfy the last-mentioned claim of the plaintiff; and before the commencement of the suit, that is to say, whilst the defendant was in such parts beyond the seas, a reasonable time had elapsed for the defendant to secure the same claim to the plaintiff's satisfaction, according to the said contract: Yet that the defendant had broken his said contract, and had never been out of the plaintiff's debt, and had never satisfied the same claim of the plaintiff, nor had the defendant secured the same to the plaintiff's *satis[*298 faction, according to the said contract: and thereby and by reason of the premises, the damages specially mentioned and alleged in the first count had severally and respectively arisen and happened to the plaintiff in manner and form as therein was expressed, and the plaintiff had not in the end come out without a farthing's loss, but had sustained the several losses and damages therein and in the first count mentioned, contrary to the said contract of the defendant.

The third count stated, that, the plaintiff being possessed as of his own property of one hundred certificates of one hundred shares in the undertaking called the Demerara Railway Company, the defendant converted the same to his own use.

The fourth count stated that the defendant wrongfully detained from the plaintiff the several certificates in the third count mentioned.

The fifth count stated, that, before and at the time of the writing the letter and making the contract therein in that count mentioned, the claims of the plaintiff in the first, third, and fourth counts of the declaration had severally arisen and accrued in manner and form as therein was expressed, and the defendant ought then to have paid or satisfied the plaintiff for and in respect of those several claims, and the defendant had from time to time been requested by the plaintiff so to do, and the defendant had from time to time requested the plaintiff to give him time, and to forbear and grant to him indulgence for the payment or satisfaction of the plaintiff's said claims, which the plaintiff had accordingly done; and thereupon the defendant, being then insolvent and unable to pay or satisfy the several claims of the plaintiff against the defendant in that count mentioned, and for the purpose of inducing the plaintiff to continue such indulgence, and to obtain further time for the payment or satisfaction of the same claims of the plaintiff, and of *certain other claims of the plaintiff against the defendant, wrote, addressed, and sent to the plaintiff a letter concerning the seve

[*299