more on the situation and character of the defendants as solicitors, than on their having been expressed to be such in the terms of their undertaking. The terms of the defendant's undertaking impose this liability on him. Besides which it is more probable that this contract between one solicitor and another should be acted on by the plaintiff as being with the defendant, and not the body of the bankrupt's London creditors. But the ground of my judgment is, that the defendant's letters of the 13th and 26th April contain precise words showing the contract to be personal by the defendant to bear two-thirds of the expenses, and not by him on behalf of others. Nor is there evidence here to show that the act of the defendant in giving this undertaking was done by the authority of the London creditors (a).

BAYLEY B.-The construction of the language used by the defendant would be, that he bound himself as paymaster for the London creditors: and if that were equivocal, the words "I undertake to bear and pay on behalf of these creditors," make the defendant liable. That meaning is consistent with reason; because the plaintiff might know who the defendant was, and the defendant, as solicitor to some of the creditors, might know the persons on whose behalf he undertook, though, whether solvent or not, they might be strangers to the plaintiff. Burrell v. Jones is not materially distinguishable from this case.

VAUGHAN B.-The question is, what is the reasonable construction of the language of the letters of the 13th and 26th April, and whether the intention of the parties can be gathered from the whole of them to

(a) See Johnson v. Ogilby et al. 3 P. Wms. 277.

1833.

HALL

v.

ASHURST.

have been to charge the defendant personally. It seems that the plaintiff must have considered that it was, for it does not appear that he knew any other persons against whom a remedy could be obtained, and after the defendant's first letter he communicated with the defendant only on the subject of the expenses, and gave the credit to him alone.

. BOLLAND B.-This appears to me to be a personal undertaking by the defendant to pay.

Rule discharged (a).

There being six special counts, one for attending all the meetings, and each of the other five for attending one meeting, it was afterwards moved that the plaintiff do elect on what count to take his verdict. And per Curiam-Had it been necessary to declare specially on the undertaking, we should not have confined the plaintiff to one count; but here the cause of action was for work and labour in attending the meetings, and the sole question was, whether the defendant was liable or not. If liable, the plaintiff could have recovered on the common count for work and labour and money paid; and there could be no objection to the absence of a special count.

The Court, however, allowed the verdict to be taken on one special count, and on the common count.

(a) Sec Cayhill v. Fitzgerald, 1 Wils. 28, 58; Norton v. Heron, Ry. & M. 229; Cass v. Ruddle et. al. 2 Vernon, 280, Edit. 1806; see note to White v. Nutt, 1 P. Wms. 61, 62, 2 id. 220; 2 Atkyns, 490; Bowen v. Morris in Error, 2 Taunt. 374; Spittle v. Lavender, 2 Brod. & B. 452.

1833.

ALSTON against UNDERSHILL.

2

mencement of

mons. There

fore where a plaintiff having signment of bail bond,

taken an as

THE 'HE defendant having been arrested on the 1st of Since 2 W. 4. April, a bail bond to the sheriff was executed. As c. 39. the comthe eighth day fell on Easter Monday (being a day an action takes between the Thursday before and the Wednesday place at the issuing the after Easter Day), the plaintiff could not go on with writ of sumthe proceedings to judgment and execution, at the expiration of Wednesday the 10th, that day being by stat. W. 4. c. 39. s. 11. the uniformity of process act, to be considered the last of such eight days. April a writ was issued against the bond, and was served on the 11th. above were put in at chambers, and notice of the justification was given. On the 16th, after they had justified, a rule was granted calling on the plaintiff to show cause why the proceedings on the bail bond should not be set aside for irregularity, on the ground aside for irregularity with that the writ in the action on the bail bond had been costs, as preissued too soon.

On the 10th of bail on the bail On the 11th bail

a

sued out pro

cess thereon against the bail, on the day with which

the time for

putting in bail above expired, the proceedings were set

mature, the cause of action not having ac

next day; and

stance that the

writ against

the bail was not served till the

11th made no

difference.
The Reg.
Gen. Easter 2
W. 4. [1832],
as to the days

Erle showed cause. The question is, whether the crued till the defendant had the 11th April in which to put in special the circumbail, so as to prevent the plaintiff's proceeding on the bail bond, by serving on that day a writ issued on the 10th? It is true, that by Reg. Gen. Easter 1832, the days between the Thursday next before and the Wednesday next after Easter Day shall not be reckoned or included in any rules or notices, or other proceedings, except notices of trial and notices of in- between the Thursday bequiry in any of the courts of law at Westminster. But fore and the by sect. 11 of 2 W. 4. c. 39. the uniformity of process act, which came into operation on the 2d Nov. 1832, "if any writ of summons, capias, or detainer, issued by authority of this act, shall be served or executed on any

Wednesday next after

Easter Day is altered by stat. 2 W. 4. c. 39. s. 11,

1833.

ALSTON

บ.

day, whether in term or vacation, all necessary proceedings to judgment may, except as hereinafter provided, be had thereon, without delay, at the expiration UNDERSHILL of eight days from the service or execution thereof, on whatever day the last of such eight days may happen to fall, whether in term or vacation. Provided always, that if the last of such eight days shall happen to fall on any day between the Thursday before and the Wednesday after Easter Day, then in every such case the Wednesday after Easter Day shall be considered as the last of such eight days." This case falls within that clause, for the Wednesday after Easter Day was the 10th April, and the plaintiff might issue a writ against the bail on that day, as he did not serve it till the 11th; and they are now only bound from the date of that service. The plaintiff may sue out the writ, and wait till the cause of action accrues before he puts it in force. A writ of summons only operates from the service, except that if a plea of the statute of limitations is pleaded, the time of its issue, like that of a latitat formerly, becomes material to be replied.

[Bayley B. The action is commenced not by the service, but by the suing out of the writ of summons, which here took place on the 10th.]

In the note to Mellor v. Walker, 2 Saund. 1 d. Serjt. Williams says: "In general cases the bill is the commencement of the action, and the latitat is only to bring the party into court; and in that view it is held that a latitat may be sued out before there is any cause of action." [Bayley B. That was to enable the plaintiff to give in evidence any cause of action which arose between the service of the writ and the bringing the bill into court. The necessity for that is at an end now.] Best v. Wilding (a) shows that the filing the bill was the com

(a) 7 T. R. 4.

mencement of the action, even where the process had been bailable, so as to let in evidence of a cause of action arising before the bill was filed, though after the writ sued out.

BAYLEY B-Since the late act 2 W. 4. c. 39. s. 11. the suing out the writ of summons is the commencement of the action, and the general rule cited has ceased to operate. Though an assignment of the bailbond may be taken directly it is executed, it cannot be acted on (a) till the time for putting in bail is expired. That was so by the former law, and is not altered by the new act. As the time for putting in bail above expired on the 10th, the cause of action on the bail bond did not arise till the 11th. The writ was therefore sued out against the bail too soon on the former day.

VAUGHAN, BOLLAND, and GURNEY B.'s concurred.

Rule absolute, with costs.

1833.

ALSTON

V.

UNDERSHILL.

(a) See Woosnam v. Price, ante, 375.