Page images

1833. KING V. MONKHOUSE. This was a motion to set aside a writ of capias, on ac- « Gray's Inn count of the indorsement not complying with the terms of Square, Lonthe Uniformity of Process Act. The writ was indorsed good descrip

tion in a writ of thus—" This writ was issued in person by W. H. King, the residence of who resides at 7, Gray's Inn Square, London.” In the the plaintiff, an

attorney, within affidavit of debt it was called Gray's Inn Square, Middle- the Uniformity sez. Mansel contended that the description of the place though it was of abode was not correct. He produced an affidavit that Gray's Inn was Gray's Inn Square was not in London but in Middlesex: not in London. the description should have been Gray's Inn Square, Gray's Inn, that being the larger district; and he referred to Engleheart v. Eyre (a), where Patteson intimated that

Gray's Inn, London," put as the residence of an individual (not an attorney) would not be sufficient.

sworn that

Hutchinson, contrà.— Gray's Inn is an extra-parochial district, and the description we have given is the best that can be given. Letters are always addressed to Gray's Inn, London.

BAYLEY, B.-The act (6) directs, that when the writ is sued out by the plaintiff in person, there must be a memorandum expressing that it is so sued out; and it must also mention the city, town, or parish, and also the name of the hamlet, street, and number of the house of such plaintiff's residence, if any such there be. The plaintiff now resides in a place which is not within any city, town, parish, or hamlet, and he has given as good a description of his residence as he could. The rule must therefore be discharged.

Rule discharged.

(a) Ante, 145.

(6) 2 Will. 4, c. 39, s. 12.

cause, the


PHILBY v. CHARLES Ikey. Where a claim An execution having issued against the goods of the is made by one on behalf of defendant, the sheriff, on executing the writ, received another to

from the defendant a written notice, that the goods seized goods seized by the sheriff in ex

were the property of William Ikey, and not of the defenecution, and, upon a rule be- dant. The sheriff thereupon obtained a rule nisi, under ing obtained under the Inter

the Interpleader Act (a), and served it upon William Ikey pleader Act,

and the defendant; but neither Charles nor William Ikey neither party appears to shew appeared to shew cause. plaintiff is not entitled to re- Clarkson, for the sheriff, asked for a rule to bar the ceive his costs from the sher- claim of William Ikey; and that Charles might pay the iff, but the sheriffand plaintiff costs of this application. are both entitled to their costs from the

Hutchinson, for the plaintiff, contended that his costs claimant or his agent, upon a

ought to be paid by the sheriff. rule to shew cause.

BAYLEY, B.—The plaintiff is not in fault, nor is the sheriff. He was forced to come here; and I think he has been brought here improperly. The rule must be absolute as to barring all claim of William Ikey; and, as to the rest, it must be enlarged, and made part of the enlarged rule why Charles or William Ilicy should not pay the sheriff his costs, and also the plaintiff his costs. I think the plaintiff cannot throw his costs on the sheriff.

Rule accordingly; and sheriff to have six days

to sell and make a return.

(a) 1 & 2 Will. 4, c. 58, s. 6.

1833. Pitt v. Evans. THE plaintiff was taken in execution for costs as he where a party was coming to attend the trial of this cause at Nisi Prius, rested upon and after being in custody some days he deposited the process out of

another Court, money. He now applied for relief, and that the Court while attending

at Nisi Prius would order the money to be returned. The process was in expectation

of its coining on, issued from the King's Bench.

he must apply for relief to the

Judge at Nisi Lord LYNDHURST, C. B.--The application must be Prius, or to the

Court out of made to the Court of King's Bench.

which the process issues, and

not to the BAYLEY, B.- It is the privilege of the Court at Nisi Court in which

the cause is. Prius to protect its suitors. The plaintiff should have applied either to the Judge at Nisi Prius, or to the Court out of which the process issued.

Rule refused (a).

(a) Jacob v. Rule, ante, Vol. 1, p. 349.

Smith v. CURTIS. Fish moved to stay the proceedings in this action, and The Court will that the plaintiff should pay the costs, under these circum- ceedings in an stances:–The plaintiff some time since had been indebted action for a

debt, though it to the defendant in 101.; the latter, being unable to obtain clearly appears

by affidavit that payment, purchased from the plaintiff coals to the amount there is no debt of 50s., and afterwards summoned the plaintiff to a 40s. local court for the residue of the debt: both parties attended, and the plaintiff said he had a cross-demand for 50s. for the coals; the commissioners awarded, that, on the balance of accounts, there was a debt due from the plaintiff to the defendant, of 11. 198. 112d. The present ac



tion was commenced for the same 50s, which had been allowed to the plaintiff in account.


v. Curtis.

BAYLEY, B.- This is a case in which we would interfere if we could; but we cannot do so.

Rule refused.

SUMMERS v. GROSVENOR. TALFOURD, Serjt., obtained a rule nisi, calling on Where the sum for which the defendant is ar

the plaintiff to shew cause why the defendant should not rested bears no have his costs of suit under the 43 Geo. 3, c. 46, s. 3, proportion to the sum which having been arrested for 331. 8s. 9d., and the arbitrator is ultimately

having awarded only 31. 9s. recovered, not being reduced by a set-off, it shews such a Ludlow, Serjt., shewed cause.—He contended that there primâ facie case of want of rea

was no ground laid for the application; and that it had sonable or pro- never been decided that the mere recovery of a less sum, bable cause for the arrest as is without other circumstances, entitled the defendant to sufficient to call on the plaintiff' move under that act. The defendant kept a public-house, to shew that he and was also a driver of a stage-coach, and the action was able or probable brought for the amount of goods sold and delivered, and wise, the defen- for work and labour, of which an account had been dedant will be entitled to his

livered. The defendant was applied to for his account, costs under the but refused to give it. If any balance had been struck be43 Geo. 3, c. 46.

tween them, the arrest would have been improper; but the plaintiff swears he did not know that the defendant had any claim against him.

had a reason

Talfourd, Serjt.-The defendant swears he always considered that the plaintiff was indebted to him. The cause was to have been tried at Shrewsbury, but was referred to a barrister, who found that only 31. 9s. was due to the plaintiff.




BAYLEY, B.-It is not shewn that the 331, was reduced by a set-off, under the plea of set-off. The defendant swears that the plaintiff said he would arrest the defendant, and that he believes the plaintiff had no reasonable or probable cause for the arrest. The defendant must shew that there was a want of reasonable or probable cause. He was arrested here for 331.; the sum recovered was only 31. 9s. The plaintiff must have known on what grounds he arrested the defendant; he does not shew how the defendant was indebted to him in 331. He neither states the items of the account nor the evidence he adduced; he does not shew whether he had reasonable or probable cause.

The other Barons concurred.

Rule absolute.

Smith and Others v. Hill. PRENDERGAST moved for a distringas.— The an- If

, upon calling swers given were, that the defendant was out of town; and, of summons, the on one occasion, the woman who answered the door, who

answer given is

that the defenwas sworn to be either the wife or servant of the defen- dant is out of

town, it must dant, said, that she was authorized to say that the de- be shewn to the

Court, that, fendant was out of town.

from inquiries made, there is

reason to beBAYLEY, B.–When the answer given is that the de- lieve that the

. fendant is out of town, inquiries ought to be made in the answer is false. neighbourhood to learn whether any persons have seen him about. In the present instance I think it may be collected, from the answer given by the woman, that the defendant had been in town.

Rule granted.

« EelmineJätka »