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1833.

sary, the fact of its being entered can be of no consequence, or at all interfere with the right of the defendant to move for judgment as in case of a nonsuit.

SARJEANT

JONES.

Rule discharged on a peremptory undertaking.

In re G. Chitty, Gent., One &c.

Court will not

(Before the four Judges.) BUTT moved for a rule to shew cause why Mr. Chitty, Where an atan attorney of this Court, should not give up to the Rev. fulfilled his en

torney has not Mr. Dowland a promissory note for 3001., and a policy of in- gagement with

respect to the surance on the life of Mr. Dowland. The motion was loan of money, founded on an affidavit, stating that, in 1829, Mr. Chitty his character of

independent of lent Mr. Dowland 300l. on the security of a note for that

attorney, the amount and a policy of insurance on the life of the bor. summarily com

pel him to fulrower. In 1831, Mr. Chitty sold for Mr. Dowland a re- fil it. versionary interest in a sum of 70001. From the proceeds of this sale, Mr. Chitty paid himself the 3001. with interest and expenses, and the balance to Mr. Dowland. On this settlement the latter required the note and policy to be given up to him, when Mr. Chitty said he had left the note at home, but would either forward it on the next day, or destroy it. The note and policy were not sent, and nothing further was heard of them until a few months since, when the personal representatives of a banker at Shaftesbury, where Mr. Chitty lived, applied to Mr. Dowland for the amount of the note, and threatened to enforce their claim by an action. Then it appeared that Mr. Chitty had paid the note into his bankers as a security for money advanced to him.

Per Curiam.-We think it would be carrying the rule further than the authorities will warrant if we were to

1833.

In Re Сніттү.

grant this motion. The misconduct of Mr. Chitty in not returning the note was not misconduct in his employment as an attorney, the transaction between the parties being not that of an attorney and client, but of borrower and lender.

Rule refused.

Gen. H. T. 2

Milner v. GRAHAM and Another. Under 1 Reg.

BUSBY applied for a rule to shew cause why the Master Will. 4, s. 74,

should not be directed to tax the defendant his costs, the defendant is under the provisions of 1 Reg. Gen. H. T. 2 Will. 4, s. 74. entitled to the costs of all is

To the declaration there were several pleas, all of which, sues found for him, although with the exception of one, were found for the defendant. they exceed the On the one found for the plaintiff, the jury gave a verdict costs of those found for the

for a farthing damages, and the Judge certified to deprive plaintiff.

the plaintiff of any more costs than damages. On taxa. tion a difficulty arose on the construction of the above rule, the words of which were, that “no costs shall be allowed on taxation to a plaintiff upon any counts or issues upon which he has not succeeded; and the costs of all issues found for the defendant shall be deducted from the plaintiff's costs." As only one farthing costs was allowed to the plaintiff, it would of course be impossible to deduct the defendant's costs, which of course in this case were much more, from them. The question, therefore, was, whether the word " deduct” was to be considered as compulsory. It should seem that the meaning and intention of the rule were, that the defendant should be allowed the costs of the issues found for him, without regard to the amount of the plaintiff's costs.

LITTLEDALE, J.-It appears a very proper question for consideration, and, therefore, you may take a rule nisi.

Rule nisi granted.

1833.

On the last day of term the rule was made absolute, no cause being shewn.

MILNER

V. GRAHAM. .

In the following Hilary Term, Justice applied to open the rule, in order that the question on the construction of the rule of Court might be discussed.

PARKE, J.-The Judges have considered that rule, and we are of opinion that the object of it, as well as its intention, is, that the defendant should be allowed his costs on all issues found for him. There can be no necessity, therefore, for granting the rule.

Rule refused.

Myers, Knt., v. Cooper. W. H. WATSON shewed cause against a rule for dis- If a plaintiť

gives notice of charging the defendant out of custody, on the ground of trial, and sets the plaintiff not having proceeded to trial or final judgment in the third

down his cause within three terms inclusive after declaration, pursuant to term inclusive

after declara1 Reg. Gen. H. 2 Will. 4, s. 85 (a). It appeared that the tion, he has plaintiff in the third term inclusive after the declara. complied suffi

ciently with tion had given notice of trial, and set his cause down; but 1 Reg. Gen.

H. 2 Will. 4, it did not come on either at the sittings during or after s. 85, and the

defendant is not the term. The plaintiff had, however, done all in his

supersedeable. power to proceed to trial within the time prescribed by the rules of the Court. If the trial had not come on, the delay was that of the Court, and not his. The defendant could not, therefore, be supersedeable.

Mansel, contrà, contended, that the plaintiff ought to have given notice that he would take the cause as undefended at the last sittings in the term. If he had so done, the mere assertion by the defendant's counsel, that the cause was defended, would only have delayed the trial

(a) Ante, Vol 1, p. 194.

1833.

MYERS

of the cause until the first sitting after term. Nothing but special circumstances could have induced the Court to allow it to keep its place in the list. The plaintiff might, if he had thought proper, have then proceeded to trial, notwithstanding the pressure of business in the Court.

Cooper.

LITTLEDALE, J.-It appears to me that the plaintiff has sufficiently complied with the rule, and therefore that the defendant is not supersedeable. The delay thus caused has not been produced by the carelessness of the plaintiff, but by the amount of business to be transacted in the Court. The delay has not been that of the plaintiff but that of the Court.

Rule discharged.

DONNIGER v. HINXMAN. BISHOP 0. Same. Where the

This was a sheriff's rule under the 1 & 2 Will. 4, sheriff applies for relief under c. 58, s. 6. It appeared that the sheriff, in the former of the Interpleader the two above cases, had levied on the goods of the denot in the affi- fendant, and almost immediately after a fi. fa., at the suit davit in support of the applica- of the second plaintiff, was delivered to him. After be tion deny collu- had seized, he received notice from the assignees of the sion with the claimants. defendant of a fiat having issued. A Major Campbell

Where an ex ecution creditor claimed the goods under a bill of sale, and the landlord does not appear on being served gave notice of rent in arrear. with the sheriff's rule, the Court cannot bar his Jeremy appeared for the sheriff. claim.

W.H, Watson appeared for the assignees, and contended that the sheriff was not entitled to the relief he prayed, as he had not, in the affidavit in support of his application, denied collusion with the parties claiming the property. Such an allegation, he contended, ought to be introduced in the affidavit, according to the provisions of

1833.

DONNIGER

HINXMAN.

the Interpleader Act. By sect. 6 of that act it was provided, " that when any such claim shall be made to any goods or chattels taken or intended to be taken in execution under any process, or to the proceeds or value thereof, it shall and may be lawful to and for the Court from which such process issued, upon application of such sheriff or other officer, made before or after the return of such process, and as well before as after any action brought against such sheriff or other officer, to call before them, by rule of Court, as well the party issuing such process as the party making such claim, and thereupon to exercise, for the adjustment of such claims, and the relief and protection of the sheriff or other officer, all or any of the powers and authorities hereinbefore contained, and make such rules and decisions as shall appear to be just, according to the circumstances of the case.” The provisions contained in sect. 1 of the act must be considered as incorporated with those of sect. 6. Relief under sect. 6 could only be given according to the provisions of sect. 1. The sheriff must be considered as placed in the situation of the stakeholder in sect. 1, and of course must make such an affidavit as is required by the provisions of sect. 1 from such stakeholder. By that section it is required that the stakeholder shall," by affidavit or otherwise, shew that such defendant does not claim any interest in the subjectmatter 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 is, therefore, clear, that, in order to entitle the sheriff to the relief given by this act, he ought to deny collusion with

any

of the parties. He cited Anderson v. Calloway (a). That

(a) Ante, Vol. 1, p. 636.

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