Mr. Serjeant Wilde shewed cause, contending that the defendant was not in the situation contemplated by the

act.

Mr. Serjeant Taddy was heard in support of his rule.

Mr. Serjeant Jones and Mr. Serjeant Coleridge appeared on behalf of George Robert Smith.

Lord Chief Justice TINDAL.-The statute upon which this application is founded is not compulsory upon the Court, but only discretionary. The words of the enactment are, "That, upon application made by or on behalf of any defendant sued in any of his Majesty's Courts of law, in any action of assumpsit, debt, detinue, or trover, such application being made after declaration and before plea, by affidavit or otherwise, shewing that such defendant does not claim any interest in the subject-matter of the suit, but that the right thereto is claimed or supposed to belong to some third party, who has sued or is expected to sue for the same, and that such defendant does not in any manner collude with such third party, but is ready to bring into Court, or to pay or dispose of the subject-matter of the action in such manner as the Court (or any Judge thereof) may order or direct, it shall be lawful for the Court, or any Judge thereof, to make rules and orders calling upon such third party to appear, and to state the nature and particulars of his claim, and maintain or relinquish his claim; and upon such rule or order to hear the allegations, as well of such third party as of the plaintiff'; and in the meantime to stay the proceedings in such action; and finally to order such third party to make himself defendant in the same or some other action, or to proceed to trial on one or more feigned issue or issues; and also to direct which of the parties shall be plaintiff or defendant on such trial, or, with the consent of

1832.

BELCHER

v.

MABERLEY.

1832.

BELCHER

v.

MABERLEY.

the plaintiff and such third party, their counsel or attornies, to dispose of the merits of their claims, and determine the same in a summary manner; and to make such other rules and orders therein, as to costs and all other matters, as may appear to be just and reasonable." The question here is, whether the defendant has not voluntarily placed himself in the situation from which he seeks to be relieved. I am inclined to think that he is not in the position of a party placed, without any fault of his own, between two adverse claimants; and therefore I think we ought to leave him to seek relief from a Court of equity. The act expressly says that the motion is only to be allowed where the defendant does not in any manner collude with the third party. In the present case, I cannot disguise it from my mind, that, but for the circumstance of the affinity between the defendant and George Robert Smith, the former would not have interfered between the parties. I therefore think this is not a case in which the Court can be properly called on to interpose.

The rest of the Court concurring—

Rule discharged.

In the Exchequer Chamber.

TRINITY TERM, 2 WILL. IV.

GURNEY v. GORDON and Another.

[In Error.]

THIS was an action of debt. The plaintiffs (below) declared that the defendant (below) was indebted to the plaintiffs (below) under and by virtue of a certain act of parliament made and passed in the ninth year of the reign of his late Majesty King George the Fourth, intituled 'An act to consolidate and amend the laws relating to the trial of controverted elections or returns of members to serve in parliament,' in the sum of 12607. 10s. 8d. for the costs and expenses incurred by the plaintiffs (below) in opposing the petition of the defendant (below) and one Charles King, Esq., complaining of an undue election and return for the borough of Tregony; and to be paid by the defendant (below) to the plaintiff's (below) when he, the defendant (below), should be thereunto afterwards requested: whereby, and by reason of the said last-mentioned sum of money being and remaining wholly unpaid, and by virtue of the said statute, an action had accrued, &c. The declaration also contained counts for money paid, money lent, and money had and received. Judgment by nil dicit having been signed, the cause was removed by writ of error into the Exchequer Chamber.

1832.

GURNEY

v.

GORDON.

The action was brought to recover the amount of costs stated in the certificate of the Speaker of the House of Commons, as allowed to the plaintiffs below (the defendants in error), as their costs of opposing the defendant's petition against their return for the borough of Tregony. The enactments of the statute 7 Geo. 4, c. 22, upon which the question turned, are as follow:

Section 57-"That, whenever any committee appointed to consider the merits of any petition complaining of an undue election or return, or of the omission to return any member or members to parliament, shall report to the House, with respect to any such petition (except as is hereinbefore excepted), that the same appeared to them to be frivolous or vexatious, the party or parties, if any, who shall have appeared before the committee in opposition to such petition, shall be entitled to recover from the person or persons, or any of them, who shall have signed such petition, the full costs and expenses which such party or parties shall have incurred in opposing the same; which costs and expenses shall be ascertained in the manner hereinafter directed."

Section 60" That the costs and expenses of prosecuting or opposing any petition presented under the provisions of this act, and the costs, expenses, and fees which shall be due and payable to any witness summoned to attend before such committee, or to any clerk or officer of the House of Commons, upon the trial of any such petition, shall be ascertained in manner following, that is to say, on application made to the Speaker of the House of Commons, within three months after the determination of the merits of such petition, by any such petitioner, party, witness, or officer, as before mentioned, for ascertaining such costs, expenses, or fees, the Speaker shall direct the same to be taxed by two persons, of whom the clerk or one of the clerks assistant of the House shall always be one, and one of the following officers, not being a member of the House,

shall be the other-that is to say, masters in the High Court of Chancery, clerks in the Court of King's Bench, prothonotaries in the Court of Common Pleas, and clerks in the Court of Exchequer; and the persons so authorized and directed to tax such costs, expenses, and fees, shall and they are hereby required to examine the same, and to report the amount thereof, together with the party liable to pay the same, to the Speaker of the said House, who shall, upon application made to him, deliver to the party or parties a certificate signed by himself, expressing the amount of the costs, expenses, and fees allowed in such report, together with the name of the party liable to pay the same: and such certificate, so signed by the Speaker, shall be conclusive evidence of the amount of such demands in all cases and for all purposes whatsoever; and the witness, officer, or party claiming under the same, shall, upon payment thereof, give a receipt at the foot of such certificate, which shall be a sufficient discharge for the same."

Section 63.-"That it shall and may be lawful for the party or parties entitled to such costs and expenses, or for his, her, or their executors or administrators, to demand the whole amount thereof so certified as above from any one or more of the persons respectively who are herein before made liable to the payment thereof in the several cases hereinbefore mentioned; and, in case of non-payment thereof, to recover the same by action of debt in any of his Majesty's Courts of record at Westminster; in which action it shall be sufficient for the plaintiff or plaintiffs to declare that the defendant or defendants is or are indebted to him or them in the sum to which the costs and expenses ascertained in manner aforesaid shall amount, by virtue of this act; and the certificate of such amount so signed as aforesaid by the Speaker, shall have the force and effect of a warrant to confess judgment; and the Court in which such action shall be commenced, shall, upon motion, and on the production of such certificate, enter up judgment in fa

1832.

GURNEY

บ.

GORDON.