Mary Ford, and Sarah Woodcock. All the children survived the testator other than Martha, who died a spinster on the 21st Nov. 1845.

Ursula Ford died on the 13th Dec. 1872, a spinster and intestate.

Abraham Ford died on the 20th Jan. 1879, a bachelor and intestate, leaving his brother Isaac Ford his heir-at-law.

Isaac Ford died on the 6th Feb. 1885, a bachelor and intestate, leaving his sisters Mary Ford and Sarah Woodcock his co-heiressesat-law.

Mary Ford died on the 1st Dec. 1887, a spinster and intestate, leaving her sister Sarah Woodcock her heiress-at-law.

Sarah Woodcock, by her will, dated the 17th Feb. 1892, appointed John Sparks and George Samuel Masters to be executors and trustees, and, after making a specific devise and certain specific and pecuniary legacies, devised and bequeathed unto her trustees all the residue of her real and personal estate upon trust, that they should sell and convert into money such parts thereof as should not consist of money or securities for money, and should stand possessed of the proceeds thereof, and also of such part of her personal estate as should not consist of money upon trust, after payment of her just debts and funeral and testamentary expenses, and the legacies bequeathed by her will, to pay and divide the same to and between George Samuel Masters and Hugh Masters.

Sarah Woodcock died on the 20th Aug. 1892 without having had any issue, and her will was duly proved by John Sparks and George Samuel Masters on the 21st Sept. 1892.

Upon the death of Sarah Woodcock, without issue, the ultimate trusts declared by the will of the testator in favour of his own right heirs and next of kin took effect. Questions, however, arose as to what person or persons were entitled under such ultimate trusts to the residuary estate of the testator and to the various freehold and leasehold estates settled by his will.

It was contended by John Sparks, George Samuel Masters, and Hugh Masters that, on the true construction of the will of the testator, the heir-at-law and next of kin were to be ascertained at his death; and that therefore the whole of such residuary and other estates passed under the will of Sarah Woodcock.

It was on the contrary contended by other parties interested that such heir-at-law and next of kin were to be ascertained at the death of Sarah Woodcock.

An originating summons was accordingly taken out by the trustees of the testator's will, asking (inter alia) whether under the ultimate trusts declared by the will, the testator's heir-at-law and next of kin respectively were to be ascertained at the death of the testator or at the death of Sarah Woodcock, or how otherwise.

The summons was adjourned into court, and on the 25th Oct. 1894 came on to be heard before North, J., who decided that the class was to be ascertained as at the death of the testator.

From that decision the plaintiffs now appealed. Swinfen Eady, Q.C. and Romer for the appellants. We submit that North, J. was wrong in deciding this case as he did, and that the class to take under the ultimate trusts should be ascer

[CT. OF APP.

tained as at the period fixed by the will for distribution. There being no reference to an intestacy nor to the Statutes of Distributions, and the testator's children being restricted from alienating their respective life interests, the case is taken out of the general rule as to when the class entitled under the ultimate trusts should be ascertained. Where property was given to a testator's next of kin in defeasance of a prior gift in favour of persons who, if they survived him, would be his next of kin at his death, the gift was considered as pointing to next of kin at a future period:

Miller v. Eaton, Coop. 272.

There is no decision precisely in point, but the case of Butler v. Bushnell (3 My. & K. 232) is very much in favour of our contention. [LINDLEY, L.J.-It seems to me that the cases, so far as they go, are rather against your contention. Certainly Holloway v. Holloway (5 Ves. 399) is, and so also is Bullock v. Downes, 9 H. of L. Cas. 1.] As regards Bullock v. Downes there was a reference to an intestacy and to the Statutes of Distributions. The ultimate trust was to such persons of the blood or next of kin of the testator, as would by virtue of the Statutes of Distributions have become and been then entitled thereto in case he had died intestate. That, we submit, makes that case different from the present. The provision against alienating in the will here is likewise an element of difference.

Everitt, Q.C. and R. J. Parker, for the respondents, were not called upon to argue.

Now,

The LORD CHANCELLOR (Herschell).—I think that the judgment of North, J. must be affirmed. The question is whether, under an ultimate gift of property-in case of the decease of all the testator's children without issue-to be held in trust "for his own right heirs and next of kin according to the nature of the said property," the right heirs and next of kin are to be ascertained at the death of the testator, or at the period fixed by the will for distribution. there have been a great number of cases in which that question, or questions of that nature, have come before the courts, and the decisions certainly do not appear to have been uniform. I have no doubt that authority could be cited either way in cases prior to 1860, by the appellants or respondents. But in the year 1860 the matter was considered by the House of Lords in the case of Bullock v. Downes (ubi sup.). There there was a bequest by the testator to different members of his family, and the residue of his estate was given to three persons, and in case there should not be any child of the son, then they were to stand possessed of the same in trust for such person or persons "as would by virtue of the Statutes of Distributions of intestates' effects have become and been then entitled thereto in case I had died intestate." The question was raised whether the next of kin were to be ascertained at the death of the testator or at the period of failure of issue of the son. The argument was strongly urged, that it could not have been the intention of the testator that the next of kin should be ascertained at the testator's death, because the result would be to give the property to a person to whom there had been a specific bequest. The House of Lords rejected that argument, and Lord Cranworth said (9 H. of L. Cas. 1, 18): "Where a testator

having by his will made contingent dispositions of his estate, or of any part of it, to take effect after the termination of particular interests for life, has proceeded to direct that, if the contingencies do not arise on which those dispositions are to take effect, then the property shall go to his next of kin according to the statute, the courts have in modern times held that prima facie his language is to be taken to refer to those who are his next of kin at his death, not to those who may happen to answer that description at the determination of the preceding particular interests. This rule of construction in general prevails even though the person or persons taking as next of kin, or some or one of them, may have been the person or persons entitled to the particular interest. It is true that there are authorities which have held that, in such cases, the property is to go to those who were next of kin at the termination of the preceding interests; and it is impossible to say that the language of a will may not be such as to show that persons answering the description of next of kin according to the statute at some time other than that of the testator's death may have been those intended to take. But, as a general rule, the death of the testator is the time to which the testator must be held to refer." All the other learned Lords concurred in that view. It is not necessary to read the language they used, but there was a complete consensus of opinion. Lord Campbell, who was then Lord Chancellor, said that it was "unnecessary again to go over the long string of authorities on this subject, and to try to reconcile them, or to point out any that must be considered erratic." No doubt it was recognised that there were authorities which could not be reconciled with the view expressed by the noble and learned Lords; but those authorities had to be rejected, and the rule was laid down as I have stated. Of course it is not open to the appellants here to contest that the general rule was what was laid down by the House of Lords. But they rely upon what is undoubtedly the fact, that reasons may appear from the language used in the will for departing from that general rule. That was recognised even by the noble Lords who gave their judgments in Bullock v. Downes (ubi sup.). The question is whether in the present case there is enough for the purpose. There are only two matters relied upon by Mr. Swinfen Eady. The one is, that the gift is not, as in Bullock v. Downes (ubi sup.), to the testator's next of kin according to the Statutes of Distributions, but that the words of the will simply are "in trust for my own right heirs and next of kin according to the nature of the said property.” I do not think that the absence of a reference to the Statutes of Distributions is a sufficient reason for departing from the general rule. The other matter relied upon is a provision declaring "that it shall not be lawful for any or either of my said sons or daughters to sell or in any manner incumber their respective life interests in the said trust premises, and if either of them shall incumber the same I direct that his or her interest in the said trust premises shall cease and determine, and the same shall be held in trust for his or her brothers and sisters, and their issue, as if he or she had departed this life." Of course that clause might have effect even if the construction of the respondents be adopted, because the attempt to charge and incumber might be always

[CT. OF APP.

defeated by the interest being to a brother or sister who might have children. It was a remote contingency whether the clause which is now under consideration would ever come into operation at all. The construction contended for by the respondents does not make that provision against incumbering in the slightest degree useless or ineffectual. Those are the two matters relied upon, and I can only, therefore, come to the conclusion, as was said in the case of Bullock v. Downes (ubi sup.), that there is nothing to be found in this will to warrant a departure from the general rule. The appeal will therefore be dis

missed with costs.

66

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66

وو

LINDLEY, L.J.-I am of the same opinion. The general rule is very accurately expressed by Mr. Hawkins in his little book on Wills, which is a very valuable work. He says (at pages 99 and 100): A devise or bequest to 'next of kin,' 'next of kin according to the statute,' &c., means the next of kin at the death of the person whose next of kin are spoken of: (Gundry v. Pinniger, 1 De G. M. & G. 502; Bird v. Luckie, 8 Hare, 301; Bullock v. Downes, 9 H. of L. Cas. 1.)" Then he goes on: Thus, if the gift be to A. for life, and after his decease to the next of kin of the testator, the persons to take as next of kin are to be ascertained at the death of the testator, and not at the death of A." Now, that has been settled, and was settled long before Bullock v. Downes (ubi sup.); but unquestionably before Bullock v. Downes there were some cases which were extremely difficult to reconcile with the existence of that rule, those cases referred to by Lord Campbell as erratic," of which Miller v. Eaton (ubi sup.) is one. However, the rule is well settled. Since 1860 I do not think that there have been any "erratic cases. It is conceded that the will may be so worded as to show that the rule ought not to be applied to that particular will. If it can be so shown-that is to say, from the language of the will-that the rule would defeat the intention of the testator, the rule should not be applied. But there is nothing in the present case that comes up to the mark to show that adherence to the rule would defeat the intention of the testator. The most favourable clause that Mr. Swinfen Eady can put his finger upon is the clause about alienating the life interests. No doubt it is open to the observation that the testator did not then think about the ultimate trusts. The truth is, I do not suppose that he ever imagined that his five children would all die without issue, although it was an event he did provide for, because the ultimate trusts of his property are among his heirs-at-law and next of kin. But that he ever contemplated it as a practical thing or a probable thing is to my mind very unlikely. However, that clause does not go anything like far enough to show that the effect of the operation of the rule would be to defeat the intention of the testator. I think that the appeal ought to be dismissed, with costs.

Tuesday, Jan. 15.

(Before the LORD CHANCELLOR (Herschell), LINDLEY and SMITH, L.JJ.)

Re GODFREY; THORNE-GEORGE v. GODFREY. (a)

APPEAL FROM THE CHANCERY DIVISION.

Married woman-Separate estate-Restraint on anticipation Costs of unsuccessful action— Married Women's Property Act 1893 (56 & 57 Vict. c. 63), s. 2.

The court has jurisdiction, under sect. 2 of the Married Women's Property Act 1893, to order payment of the costs of an unsuccessful action instituted by a married woman, which was commenced prior to and was pending at the date of the passing of that Act, out of property which is subject to a restraint on anticipation. Decision of Romer, J. (71 L. T. Rep. 568) affirmed. By the judgment of Romer, J. in this action, which was instituted by a married woman and which was commenced before and was pending at the date of the passing of the Married Women's Property Act 1893, it was ordered that, notwithstanding the restraint against anticipation imposed by a will and settlement under which the plaintiff was entitled to a life interest for her separate use, the plaintiff should be at liberty to charge such life interest for the purpose of raising the costs of the action, which she was ordered to pay to the defendants, the trustees of the instruments in question. Liberty was reserved to the defendants to apply in case the costs should not be paid to them within one month after the date of the taxing master's certificate (71 L. T. Rep. 86).

The plaintiff having failed to raise the costs, which had been taxed at 2081., an application was made on behalf of the defendants under sect. 2 of the Married Women's Property Act 1893 that their costs might be paid out of the income notwithstanding the restraint on anticipation.

The settled income amounted to 1607. per

annum.

Sect. 2 of the Married Women's Property Act 1893 enacts that:

In any action or proceeding now or hereafter instituted by a woman, or by a next friend on her behalf, the court before which such action or proceeding is pending shall have jurisdiction by judgment or order from time to time to order payment of the costs of the opposite party out of property which is subject to a restraint on anticipation, and may enforce such payment by the appointment of a receiver and the sale of the property, or otherwise as may be just.

It was decided by Romer, J. that, the court being of opinion that sect. 2 was applicable, and that the case was one in which the powers of that statute were properly exercisable, the defendants should be at liberty, notwithstanding the restraint, to retain 801. each year out of the income as it accrued due until the costs of the action and of this application should have been satisfied: (71 L. T. Rep. 568).

From that decision the plaintiff now appealed. The appellant appeared in person, and contended that Romer, J. had no jurisdiction to make this order, as the Act was not retrospective in its operation, and did not apply to actions commenced before it came into force. She relied on HoodBarrs v. Cathcart (71 L. T. Rep. 11; (1894) 3 Ch. 376).

(a) Reported by E. A. SCRATCHLEY, Esq., Barrister-at-Law.

[APP.

J.F. Popham, for the respondents, was not called upon to argue.

The COURT (the Lord Chancellor (Herschell), Lindley and Smith, L.JJ.) held, that the word 66 now "in sect. 2 made it applicable to actions commenced prior to and pending at the date of the passing of the Act, and that the decision in the case of Hood-Barrs v. Cathcart (ubi sup.) was not in point, because there the married woman was a respondent to the proceedings, and was not a person by whom they were instituted. Their Lordships accordingly dismissed the appeal with Appeal dismissed.

costs.

Solicitor for the appellant, A. L. Armitage, Solicitor for the respondents, O. Vernède.

Wednesday, Nov. 7, 1894.

(Before Lord ESHER, M.R., LOPES and RIGBY, L.JJ.)

WEGG-PROSSER v. EVANS. (a) APPEAL FROM THE QUEEN'S BENCH DIVISION. Joint contractor-Joint Guarantee-Payment by one guarantor by cheque-Unsatisfied judgment on cheque-Action against other guarantor upon the guarantee.

An unsatisfied judgment, recovered by the creditor upon a cheque given by one joint guarantor in respect of the liability upon the guarantee, is no bar to an action against the other joint guarantor upon the guarantee.

Drake v. Mitchell (3 East, 251) followed. Cambefort v. Chapman (57 L. T. Rep. 625; 19 Q. B. Div. 229) overruled.

THIS was an appeal by the defendant from the judgment of Wills, J. at the trial without a jury (70 L. T. Rep. 664).

The action was to recover the sum of 1791. upon a guarantee.

The plaintiff was the owner of a farm which he let to one Williams, the defendant and one Thomas giving a joint guarantee for the rent.

One half-year's rent of the farm, due on the 2nd Feb. 1893, was not paid by the tenant, and the plaintiff applied to Thomas for payment of the amount under the guarantee.

Thomas gave a cheque to the plaintiff for 1791., the amount of rent in arrear. This cheque was dishonoured upon presentation, and the plaintiff sued Thomas upon the cheque and recovered judgment for the amount.

Execution was issued upon the judgment, but the plaintiff recovered nothing upon it.

The plaintiff then commenced the present action, against the defendant alone, upon the guarantee, to recover the sum of 1791., the amount of the rent which was due on the 2nd Feb. 1893, and was not paid.

The action was tried before Wills, J., without a jury, and the learned judge gave judgment for the plaintiff (70 L. T. Rep. 664).

The defendant appealed.

J. E. Bankes (A. E. Mackintosh with him) for the appellant.-The defendant is discharged by the judgment that has been recovered against Thomas. The defendant's only contract was a

(a) Reported by J. H. WILLIAMS, Esq., Barrister-at-Law.

joint one with Thomas; he could not now have Thomas joined as a co-defendant in an action against him, and the defendant's position is so altered that he ought to be held discharged. A judgment recovered against one of two joint contractors is a discharge of his co-contractor :

Kendall v. Hamilton, 41 L. T. Rep. 418; 4 App.
Cas. 504;

King v. Hoare, 13 M. & W. 494.

If Thomas were now sued on the guarantee he could plead the judgment recovered on the cheque. The judgment extinguished the cause of action on the cheque, and the agreement in consideration for which the cheque was given. It is true that the cause of action for which Thomas was sued is not the same as that for which the defendant is sued; but the debt for which the defendant was liable is the same as that for which the plaintiff recovered judgment against Thomas on the cheque. The debt is the rent, and it is immaterial whether it be secured by a cheque or by a guarantee. The point has been directly decided in favour of my contention that it is sufficient if the debt is the same, though the cause of action in the two cases is different:

Cambefort v. Chapman, 57 L. T. Rep. 625; 19 Q. B
Div. 229.

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That case was decided upon the judgments in Kendall v. Hamilton (ubi sup.), in which Lord Cairns, L.C. says: It is the right of persons jointly liable to pay a debt to insist on being sued together." Wills, J. decided the present_case upon the judgments in Drake v. Mitchell (3 East. 251). That case was not cited in Kendall v. Hamilton, and it is submitted was wrongly decided.

A. T. Lawrence for the respondent. In this case the defendant could have had Thomas joined as a co-defendant if he had taken the proper steps, and therefore the judgment given in this case is not at variance with the decisions in

King v. Hoare, 13 M. & W. 494;

Kendall v. Hamilton, 41 L. T. Rep. 418; 4 App.
Cas. 504.

A judgment upon a cheque given as a conditional payment, which has not been satisfied, is not a bar to an action upon the original debt. There is no merger of the original debt in the judgment upon the cheque, because the cause of action is not the same. The case of Drake v. Mitchell (3 East, 251) is a clear authority to that effect, and has never been overruled or even questioned, except so far as Cambefort v. Chapman (57 L. T. Rep. 625) has done so. The latter case was not correctly decided, and ought to be overruled. The passage cited from Byles on Bills (14th edit.), p. 313), by Manisty, J., in Cambefort v. Chapman, if it does support the appellant's contention, is not borne out by the authorities there stated. In Bridges v. Berry (3 Taunt. 130) the ground of the decision was, that the defendant had been prejudiced; but in the present case the defendant has not been in any way prejudiced.

Bankes in reply.-The cause of action on the cheque and on the guarantee was substantially the same, and that is sufficient to prevent the plaintiff, after recovering judgment upon one, from suing on the other:

Phillips v. Berryman, 3 Doug. 286; Routledge v. Hislop, 29 L. J. 90, M. C.; Brunsden v. Humphrey, 14 Q. B. Div. 141. Vol. LXXII., 1842*.

[CT. OF APP.

The

Lord ESHER, M.R.-In this case the plaintiff was the owner of a farm, and let it to one Williams; he took a guarantee for the payment of the rent from the defendant and one Thomas. This guarantee was a joint, and not a joint and several, guarantee. The tenant Williams did not pay the rent when it became due, and the plaintiff, therefore, had a right of action upon the guarantee. That action ought to be an action against the two guarantors jointly; and if the action were brought against one only he might formerly have pleaded in abatement, and since the Judicature Acts could apply for an order to have the other one joined as a defendant. The plaintiff did not, however, when the rent became in arrear, bring an action upon the guarantee against either or both of the joint guarantors, but he took a cheque for the rent in arrear from Thomas. That cheque was not of itself a satisfaction of the debt, but was only what is called a conditional payment. If that cheque had been honoured, then the debt due upon the guarantee would have been paid, and the plaintiff could not have sued the present defendant in the action. Thomas could, in such case, have claimed contribution from the defendant, but the position of the latter would not have been altered by what Thomas had done. Thomas, however, did not pay the cheque, which was dishonoured. plaintiff, thereupon, sued Thomas the cheque, the cause of action being the dishonour of the cheque, and recovered judgment. If that judgment had been satisfied, then the debt due upon the guarantee would have really been paid; but that judgment has not been satisfied. It has been contended by the defendant that the law is that, by the reason of the giving of the cheque and the recovering of judgment upon that cheque the plaintiff is now prevented from suing the defendant upon the guarantee. If the rule of law were so it would, in my opinion, be a most stringent technicality, and would be contrary to truth and justice. For my own part I object to such a technicality, and will not, unless I am bound by authority, adopt it. If we were bound by authority I would, of course, follow such authority. We ought, however, to look closely at the cases to see whether there is any binding authority that the rule is as alleged by the defendant. It is no doubt the law that, if the plaintiff had sued Thomas alone upon the guarantee, and had recovered judgment against him, he could not afterwards have sued the defendant upon the guarantee. In the present case, however, the plaintiff sued Thomas upon the cheque and not upon the guarantee. Now, is there any authority that, where a judgment is recovered against one of two joint contractors, not in an action upon the joint contract, but in an action upon

upon

a cheque given in respect of the liability upon the contract, an action against the other joint contractor is barred ? It seems to me that the case of Drake v. Mitchell (ubi sup.) is clearly to the contrary effect. That case was decided by four eminent judges, and Lord Ellenborough there said: "I have always understood the principle of transit in rem judicatam to relate only to the particular cause of action, in which the judgment is recovered, operating as a change of remedy from its being of a higher nature than before. But a judgment recovered in any form of action is still but a security for the original

cause of action, until it be made productive in satisfaction to the party; and, therefore, till then it cannot operate to change any other collateral concurrent remedy which the party may have. If indeed one who is indebted upon simple contract give a bond, or have judgment against him upon it, the simple contract is merged in the higher security. So one may agree to accept of a different security in satisfaction of his debt; but it is not stated here that the note and bill were accepted in satisfaction, and in themselves they cannot operate as such until the party has received the fruits of them; and then, although they were not originally given in satisfaction of the higher demand, yet, ultimately producing satisfaction, it would be a bar to so much of the present demand." That is as plain as it can be. Here no judgment was recovered against Thomas in respect of this cause of action upon which the defendant is now sued, that is, upon the guarantee; Thomas was not sued upon that cause of action, but upon the cheque. It is said, however, that the decision in Cambefort v. Chapman (ubi sup.) is to the contrary, and I think that that case does conflict with Drake v. Mitchell (ubi sup.). That being so, which case ought we to follow? Drake v. Mitchell was decided in 1803, and has stood from then until the decision of Cambefort v. Chapman, in 1887. That alone would be a good ground for preferring the older case; and also I agree with the older case, and not with the later one. In my opinion, therefore, we ought to follow the case of Drake v. Mitchell (ubi sup.) unless it has been overruled. I do not think that, in Kendall v. Hamilton (ubi sup.), the House of Lords intended in any way to overrule Drake v. Mitchell. There is, then, no authority which binds us to hold that the rule of law is as contended by the defendant. It is said that the defendant had a right to have Thomas joined as a co-defendant in the action, and that, by the transaction as to the cheque, he was deprived of that right. That argument is quite incorrect. It follows from my decision that the defendant had a right to have Thomas joined as a co-defendant, if he chose to ask that that should be done, In my opinion this case is governed by the decision in Drake v. Mitchell (ubi sup.), and the case of Cambefort v. Chapman (ubi sup.) was wrongly decided. This appeal must

therefore be dismissed.

LOPES, L.J.-Were it not that we are differing from the decision in Cambefort v. Chapman (ubi sup.) I would not add anything to the judgment of the Master of the Rolls. The question before us is, whether an unsatisfied judgment against one of two joint contractors, recovered in an action upon a cheque given by him as a conditional payment in respect of the liability upon the joint contract, is a bar to an action against the other joint contractor upon the original contract. In my opinion we must answer that question in the affirmative if the judgment against the one joint contractor was recovered in respect of the same cause of action as that upon which the other is being sued, but we must answer that question in the negative if the cause of action is not the same. The question, therefore, is whether the cause of action upon the cheque was the same as the cause of action upon the guarantee. It seems to me clear that the two causes of action are quite different; quite different questions, both of law and fact, might arise in the two

[CT. OF APP.

cases. It is also to be observed that Thomas could not have applied to have the present defendant added as a co-defendant in the action upon the cheque; but that he could have so applied if the action had been brought against him upon the guarantee. The decision in Drake v. Mitchell (ubi sup.) appears to me to be entirely applicable to this case, and not to be distinguishable. In that case one of three joint covenantors gave a bill of exchange for part of a debt secured by the covenant, and judgment was recovered on that bill; it was held that such judgment was no bar to an action of covenant against the three, such bill, though stated to have been given for the payment and in satisfaction of the debt, not being averred to have been accepted as satisfaction nor to have produced it in fact. Grose, J. there said: "The note or bill, not having been accepted as satisfaction for the debt, could only operate as a collateral security; and, though judgment has been recovered on the bill, yet not having produced satisfaction in fact, the plaintiff may still resort to his original remedy on the covenant; and the judgments of the other judges are clear to the same effect. It is argued that that case conflicts with the decision in Cambefort v. Chapman (ubi sup.), and it does appear to do so. Which case ought we to follow? The case of Drake v. Mitchell (ubi sup.) was decided by great judges, and has been unquestioned for eighty-four years; that alone is a good reason for following that decision, and I agree with the decision in that case. The case of Cambefort v. Chapman (ubi sup.) is noticed in Lindley on Partnership (6th edit., p. 263), and a doubt is expressed whether it was rightly decided. I may add that we have mentioned the case to Lindley, L.J., and he has expressed a strong opinion that Cambefort v. Chapman (ubi sup.) was wrongly decided. That case ought therefore, I think, to be now overruled. In this case the defendant could have had Thomas joined as a co-defendant if he had wished to do so, and it is his own fault that Thomas has not been joined. The judgment of Wills, J. was right, and must be affirmed.

RIGBY, L.J.-The first question is, whether the joint cause of action against the two joint contractors was merged in the judgment obtained against one of them upon a several cause of action. The question appears to me to answer itself, for the joint cause of action is different from the several cause of action. In Kendall v. Hamilton (ubi sup.) the question was whether there was not a several as well as a joint cause of action. It seems to have been conceded by the defendant in that case that, if there was a several cause of action, he could be sued, though judg ment had been recovered against his partners upon the joint cause of action. In that case both causes of action would have been within the test which the appellant has sought to establish, as they both arose out of the same subject-matter and were substantially in respect of the same debt. A judgment against joint contractors upon the joint cause of action is quite different from a judgment upon a several cause of action against one of them. Here the cause of action upon the cheque was quite different from the joint cause of action upon the guarantee. The doctrine of merger applies only when the causes of action are the same. The joint cause of action upon the guarantee was not, therefore, merged in the judg