REPORTS OF CASES DETERMINED ON POINTS OF PRACTICE. COURT OF EXCHEQUER. Michaelmas Term, IN THE FOURTH YEAR OF THE REIGN OF WILLIAM IV. BOWEN v. BRAMIDGE. 1833. Where an issue is tried by di rection of the Court, under the Interpleader Act, the unsuccessful party is liable for the THIS Talfourd, Serjt., shewed cause. He said, that, if the A party who applies to the Court by mo tion, without having made application to the opposite party to do what the rule calls on him to do, is not enti tled to the costs of the rule, if the opposite party, on shewing cause, confines himself to the question of costs. VOL. II. (a) Ante, p. 59. D. P. C. 1833. BOWEN V. BRAMIDGE. who fails is to pay all the costs, it would bear very hard upon his client, but he could not oppose the present motion: he objected also to the payment of the costs of this rule, because there had been no previous application to the defendant. R. V. Richards, contrà, contended that he was entitled to the costs of the rule, as he could not have got the money out of Court without a motion; and that, unless it was to be an universal rule that no party can have costs unless there has been a previous application, he was entitled to have this rule made absolute with costs. BAYLEY, B.-I think the party who succeeds is entitled. to the costs of the action, and that the party who fails must pay them; but, as to the costs of this rule, I think the plaintiff is not entitled to them, no previous application having been made to the defendant. If he had been applied to by Bowen to pay him the costs of the action, this application would probably have been unnecessary. No opposition has been made, except to that part of the rule which prayed for costs. VAUGHAN, B.-All the costs ought naturally to fall on the party who fails. The Interpleader Act was intended to be in aid of sheriffs; and it is not because a particular case of hardship happens that the act is to be called a bad act. Rule absolute, without costs. 1833. WATSON V. ABBOTT. THIS The act authorizing the sheriff to try issues where the debt or demand does not exceed 201. applies only to niary demands, debts and pecu and not to torts. Semble, that the sheriff or his deputy has the Petersdorff shewed cause.-The secondary has the power to nonpower to nonsuit. BAYLEY, B.-I have no doubt that the secondary had power to nonsuit, for he is put in the situation of a Judge at Nisi Prius (a); but had he power to try such a question as this? Petersdorff-The order was obtained by the plaintiff. BAYLEY, B.-You cannot insist that this is within the act. The proceedings are coram non judice. The act only extends to debts and pecuniary demands. VAUGHAN, B.-The words of the act are, 66 any debt or demand where the sum sought to be recovered and indorsed on the writ of summons shall not exceed 201.," &c. There could have been no debt here indorsed on the writ. Rule absolute for setting aside the nonsuit. (a) This point was made by Hill in moving for the rule nisi, but abandoned by him, Lord Lyndhurst and the rest of the him. suit. 1833. WARREN V. SMITH. Service of a rule FOLLETT, in moving to make absolute a rule to com nisi to compute the defendant, on the mother of pute, said that there was some doubt about the sufficiency of the service. The affidavit merely stated that the rule nisi was served by leaving it with the mother of the defendant, at his residence. at his residence, held sufficient. Per curiam.-That is sufficient. Rule absolute. case of a non PREEDY v. MACFARLANE. Judgment as in PRICE moved for judgment as in case of a nonsuit, issue having been joined last term, and notice of trial given for moved for in the the first Sittings in this term; but the cause had not been suit cannot be term for which notice of trial had been given. set down. VAUGHAN, B.-You cannot move in the same term in which default was made. BAYLEY, B.-I am of the same opinion. Rule refused. It is a question for the discre ter, whether a PLATT V. GREENE. MILNER shewed cause against a rule which had been tion of the Mas- obtained by Wightman for referring a bill of costs back to the Master. The cause was tried at the last Lancaster Assizes: the commission-day being Monday, and business witness ought to be allowed for the whole time of his attend ance at the assizes, or only a portion of it; but, where the Master has decided upon it, the Court will not review his decision. beginning on Tuesday morning. This cause stood 70 in the third list, and was not tried till Saturday evening, when the plaintiff got a verdict. The objection was to the allowance which had been made to the witnesses for their time. One was an attorney, and a material witness; he had been allowed eight days; others had been allowed nine days; some not so much. Wightman objected to this allowance, as the attorney must have known he would not be wanted at the beginning of the week. It appeared, however, that the objection had been taken before the Master, and he had decided upon it; and that the attorney had been written to by the plaintiff's agent on Saturday, directing him to be at Lancaster on the Monday morning, and that the defendant's witnesses were also in attendance on the Monday, and that the first list of causes had gone off very rapidly: these circumstances had been taken into consideration by the Master. Lord LYNDHURST, C. B.-If the parties acted bona fide, there is no ground for reviewing the discretion of the Master, though it may be true that other persons might have formed a different opinion as to the necessity of the witnesses attending so early. BAYLEY, B.-It is a question for the Master, whether the witnesses ought to have attended on the first day; and he has decided upon it. Rule discharged without costs. 1833. PLATT v. GREENE. HUMFREY moved for an attachment against the de- An attachment The for costs is now fendant, Sarah Barker, for non-payment of costs. grantable with out first issuing a subpena. |