1860. GREET V. WEBB. cease to make or continue the insurance, or produce receipts, it should be lawful for the plaintiff to make and continue the like insurance, and that the sum which he should expend, with interest, should be a charge on the premises assigned, and recoverable in like manner as the 15007. (The covenants in the lease were (inter alia) that the lessee should at all times during the continuance of the term, repair, uphold, maintain, &c., the messuage: that he should insure). Breach: that though the 15007. remained unpaid, and the messuages, &c. had not been sold, yet the defendant did not pay the rents reserved, or fulfil the several covenants, but made default in payment of certain of the rents, in repairing, upholding, &c., and in insuring and keeping insured the premises, from loss or damage by fire, whereby the plaintiff was forced to expend money in payment of arrears of rent, and in repairing and keeping the premises insured, &c. T. J. Clark now moved for leave to plead the following pleas. First: that the cause of action accrued before the defendant became bankrupt. Secondly: a plea on equitable grounds that the defendant did what was complained of by the plaintiff's licence.-The first plea ought to be allowed. The defendant being possessed of certain terms of years, assigned them to the plaintiff by way of mortgage, and entered into these covenants for the purpose of securing the principal debt. If this action can be maintained, the plaintiff may recover for breaches of covenant though in actual possession of the rents, and would be only liable to account to the assignees under the bankruptcy for any surplus after the realization of his security. By taking possession, the mortgagee may deprive the mortgagor of the power of performing his covenant, and yet it is contended, that notwithstanding his bankruptcy the mortgagor shall never get rid of his liability. In Warburg v. Tucker (a) it was not alleged that the breaches of covenant were before the bankruptcy. Here the plea is, that the breaches were before the bankruptcy, so that the repairs required to be done, all the liability accrued, and the claim was ascertained before the bankruptcy. The plaintiff might have proved he might have realized his security and proved for the balance.-He referred to the 12 & 13 Vict. c. 106, ss. 178, 145, Hankin v. Bennett (b), Ex parte Barwis (c), and Young v. Winter (d). [Channell, B., referred to Wallis v. Swinburne (e). Pollock, C. B.-No doubt it is the policy of the Bankrupt Laws that the bankrupt should be freed from all liabilities; but the 200th section makes the certificate a release from those claims and demands only which are proveable under the bankruptcy.] Per CURIAM (f).-There will be no rule. (a) See 5 E. & B. 384. 394. (b) 8 Exch. 107. 114. (c) 25 L. J., N. S., Bkpt. 10. (d) 16 C. B. 401. Rule refused. (e) 1 Exch. 203. (f) Pollock, C. B., Martin, B., and Bramwell, B. 1860. GREET v. WEBB. WHITTALL v. CAMPBELL. May 7. WATKIN WILLIAMS had obtained a rule calling on An officer in her Majesty's the plaintiff to shew cause why he should not give securi- Indian Army, ties for the defendant's costs. The affidavit of the defendant's attorney, made in support of the application, stated that the plaintiff was permanently resident in the East Indies, having gone there some years ago as a surgeon in the military service of the East India Company. The affidavits in reply stated that the plaintiff, in 1840, obtained an appointment from the Military Department of the Honourable East India Company, as assistant military permanently residing and in active service in India, compelled to will not be find security for costs. 1860. WHITTALL v. CAMPBELL. surgeon in their army on their Bengal establishment: that he left this country for service in India, under orders from the late Court of Directors of the Honourable East India Company, and remained in India on active service until 1855, when he obtained leave of absence from the commander in chief in India on medical certificate, and returned to England: that, such leave of absence having expired in 1857, he returned to the East Indies, where he has ever since remained in actual service as a military surgeon: that the plaintiff, as such military surgeon, was by the 21 & 22 Vict. c. 106, and the proclamation of the Government of India, in the year 1858 transferred to, and he now is in actual service as a military surgeon in her Majesty's Indian army, with the Artillery detachment at Agra in the East Indies. Joseph Brown now shewed cause.-The plaintiff is exempt from liability to find security for costs, being in the public service of the country. In Garwood v. Bradburn(a) this exemption was allowed in the case of a private soldier in the service of the East India Company. [Channell, B.— When the case was before me at Chambers, I thought that, as it appeared that the plaintiff was abroad by order of the Sovereign, the defendant was not entitled to call on him to give security for costs, and therefore I refused to make an order.] Since the passing of the 21 & 22 Vict. c. 106, the plaintiff has been immediately in the service of the Crown, and therefore the case is directly within the authority of Evering v. Chiffenden (b) and Lord Nugent v. Harcourt (c). In Garwood v. Bradburn (a) Coleridge, J., said that the limits within which the Courts have bounded themselves in making parties give security for costs ought not to be extended. (a) 9 Dowl. 1031. (b) 7 Dowl. 536. (c) 2 Dowl. 578. Watkin Williams, in support of his rule.-The principle is that, if a plaintiff is absent permanently, he shall be compelled to give security for costs, unless his absence is involuntary. In Garwood v. Bradburn (a) a different rule was acted upon; but it is submitted that that case, which was in the Bail Court, was erroneously decided. There is a distinction between the service of the Queen and that of the East India Company. An officer in the service of the Queen does not, while an officer in the service of the Company does, acquire a domicile by residence and service in India: The Attorney General v. Napier (b), Forbes v. Forbes (c), Bruce v. Bruce (d). The reason is that it was presumed that an officer in the service of the East India Company went to India voluntarily. If a plaintiff is abroad voluntarily, he may be called upon to find security for costs. The place of enlistment is not material. The Queen's Indian army is a foreign army, and a person who enlists in it goes to reside abroad voluntarily; not simply in obedience to the orders of the Sovereign. [Wilde, B. -Suppose an officer in the Queen's service exchanged into a regiment going to the East Indies, would you contend that he must therefore give security for costs?] It is not necessary to decide that point. The circumstance that her Majesty is the supreme ruler of India does not affect the question. By the 21 & 22 Vict. c. 106, s. 56, the military forces of the Company are liable to serve her Majesty within the same territorial limits only as if they had continued in the service of the Company. POLLOCK, C. B.-The rule must be discharged. The plaintiff, being absent in India in the service of her Majesty, ought not to be called upon to give security for costs. (a) 9 Dowl. 1031. (b) 6 Exch. 217. VOL. V.-N, S. R R (c) Kay, 341. 356. EXCH 1860. WHITTALL t'. CAMPBELL. 1860. WHITTALL v. CAMPBELL. BRAMWELL, B.—I am of the same opinion. Assuming the position to be correct, that the criterion is whether the absence of a plaintiff is voluntary or involuntary, I think it is involuntary in the case of a person who is engaged in the service of the Crown in a foreign country which he cannot quit without a breach of duty. WILDE, B.-I am of the same opinion. The question does not turn upon the voluntary absence of the party, in the sense in which the expression would be understood in cases relating to domicile. CHANNELL, B., concurred. Rule discharged. April 27. BARNETT V. THE LONDON and North WESTERN RAILWAY Where a plea THIS was an action against the defendants for an alleged that the plain tiff since the last pleading had been con victed of felony loss of forty dozen boots and shoes, packed in hampers, delivered by the plaintiff to the defendants to be carried is pleaded puis by them. There was a second count in trover. darrein con tinuance, the plaintiff may On the 21st of November, 1859, the defendants pleaded confess the plea payment into Court of 10s. as the price of the hampers, and "not guilty" and "not possessed" as to the residue of the declaration. and sign judg ment for his costs, by rule 23 of the Pleading Rules, Trin. T. 1853. On the 17th of January, 1860, the plaintiff replied, taking the 10s. out of Court in full satisfaction and discharge of the cause of action in respect thereof. After the delivery of the pleas and before the replication, viz. on the 9th of January, 1860, the plaintiff was convicted of felony, and, on the 29th of January, on the motion of |