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1833.

DONNIGE

HINXMAN.

was an application by the sheriff for relief under the present act. There Lord Lyndhurst, in alluding to the special circumstances of the case, observed—“The object of the act of Parliament was to afford relief to the sheriff, where two parties are claiming the property, by making them fight it out; but he must have either the goods or the money in his possession. It does not apply to a case where he has paid over the money to one of the parties. The condition in the first clause is, that the party does not collude, and is ready to bring the money into Court. The words are, 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. The obvious meaning of that clause is, that the party applying has got in his possession the property in respect of which he is sued, and to which he claims no right; and I think that this clause governs the whole act.” The judgment of Mr. Baron Bayley, also, was to the same effect, though rather stronger. His Lordship observed, that “the act does not apply to such a case as this, where the sheriff has paid over the money. The powers and authorities to be exercised by the Court for the relief of the sheriff, are in the 6th section expressly stated to be such powers and authorities as in that act are before contained,' which renders it necessary to refer to the preceding sections to ascertain the extent and application of those powers and authorities. Then, one condition in the first section is, that the party applying for relief shall be ready to bring the subject-matter of dispute into Court, or to dispose of it as the Court shall direct. The act is a substitution for the remedy by bill of interpleader.” From this mode of viewing the act by the Court in that case, it was clear that the sheriff ought to deny collusion. Again, the case of Cook

1833.

v. Robert Allen (a) was to the same effect. There, Mr. Baron Bayley said, “ It is not at all clear that the sheriff ought not to deny collusion."

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LITTLEDALE, J.-It does not appear to me that it is necessary for the sheriff to deny collusion, although it may be proper that a private person, not standing in the situation of a public officer, should be required to make such a denial (6).

Erle appeared for the plaintiff Bishop.

Boileau, for Major Campbell,

Follett, for the landlord.

No one appeared for Donniger.

W. H. Watson contended, that, as Donniger, who was one of the claimants, he being an execution creditor, had been served with the sheriff's rule, and did not appear, the Court should bar his claim.

LITTLEDALE, J.-Donniger is an execution creditor, and the question between him and Bishop is, who has the priority of execution. He does not stand in the situation of a third party claiming the goods seized by the sheriff; but the power of the Court to bar claims is only in the case of a third person. By sect. 3 of the act, it is provided “that if such third party shall not appear upon such rule or order to maintain or relinquish his claim, being duly served therewith, or shall neglect or refuse to comply with any rule or order to be made after appear,

(a) Ante, p.11.

(6) In the following Easter Term Mr. Justice Taunton pro

nounced a similar decision in the case of Dobbins v. Green.

1833.

DONNIGER

HINXMAN.

ance, it shall be lawful for the Court or Judge to declare such third party, and all persons claiming by, from, or under him, to be for ever barred from prosecuting his claim against the original defendant, his executors or adminis. trators, saving, nevertheless, the right or claim of such third party against the plaintiff.” The Court, therefore, has no power to interfere and bar the claim of an execution creditor, as the act only applies to the case of a third party claiming

It afterwards appeared that Donniger had died since the service of the rule, and therefore the whole case stood over until the following term, when arrangements were made for deciding the question between the parties.

Doe d. Norman v. Roe. The Court will MOTION for judgment against the casual ejector.not grant judgment against

The affidavit stated, that, before the first day of the pretor, when, from sent term, namely, on the 4th of October last, the deponent

affixed a copy of the declaration and notice, by nailing the support of the motion, it ap- same against the exterior wall of the dwelling-house, premises are

being the most accessible and conspicuous part of the house, which was locked up, and seemingly uninhabited.

tbe affidavit in

pears that the

vacant.

LITTLEDALE, J.-More than that must appear. The tenant and his family might have been absent at market.

It subsequently appeared, from another affidavit, that deponent had made inquiries in the neighbourhood, and had been informed that the premises had been for some time uninhabited, and that the interior of the messuage had been pulled down and taken away; that six quarters' rent was due, and that it appeared that the premises had

1833.

been deserted ever since the last payment of rent; that deponent had been informed, and verily believed, that the lessee was, since that time, dead.

Doe

d. NORMAN

Roe.

LITTLEDALE, J.--Here is a mere vacant possession, and the proper proceedings with respect to it have not been adopted. If I were to allow this, I should be opening the way to great irregularities.

Rule refused.

SPRIGGE, Gent., One &c. v. RUTHERFORD.

(Before the four Judges.) THIS was an action by an attorney for his bill, amount- Where a plain

tiff gave notice ing to 71. 10s. The plaintiff gave the defendant notice that he should

take the cause that he should take it as an undefended cause on Tues

down to trial as day, the 2nd day of December. On that day the re- an undefended

cause, and when cord having been taken down, the Lord Chief Justice, it was called on

the defendant's after trying several causes in the paper, intimated at counsel said it three o'clock that he would then take undefended causes:

was defended,

whereupon it the names of all the causes were then called over, and, was not tried;

but the plaintiff upon this cause being called, the defendant's counsel stated again took the

record down that it was defended, and it was not tried. On the fol

and got the lowing day the Lord Chief Justice went into the city to

cause tried as

undefended, try undefended causes, and returned to Westminster on without any

new notice or the Thursday. On the Wednesday evening the defen- setting it down dant's counsel attended at the Marshal's office to inspect the Court grantthe list of causes for the next day, and, though there were ed a new trial,

without payseveral undefended causes in the list, this cause was not ment of costs. set down. No notice was given by the plaintiff that the cause would be taken on Thursday as an undefended cause, nor was it put into the paper of the day. The defendant's attorney, believing that the cause would come on in the regular course, did not attend. The brief remained in the hands of counsel. The plaintiff got the cause tried

1833.

SPRIGGE

RUTHERFORD.

on Thursday, without the knowledge of the defendant's attorney or counsel, as an undefended cause, and obtained a verdict. Upon an affidavit of these facts, and that the defendant had a good defence upon the merits, S. Hughes, on the part of the defendant, obtained a rule nisi for setting aside the verdict, and for a new trial.

Busby shewed cause. He produced long affidavits to shew that the defendant couid have no defence.

TAUNTON, J., observed, it was not usual to answer affidavits of merits in that manner, for it would be trying the cause.

Busby.The new trial ought at least to be upon payment of costs.

S. Hughes, in support of the rule, contended that the plaintiff was clearly irregular in getting the cause tried behind the back of the defendant, and that he should either have set the cause down in the paper of the day, or given notice to the defendant's attorney that the record would be taken down on the Thursday. He referred to a rule of this Court (a), which directed that “every cause shall be tried in the order in which it is entered, unless it be made out to the satisfaction of the Judge, in open Court, that there is reasonable cause to the contrary; who thereupon may make such order for the trial of the cause so to be put off as to him shall seem just.” He contended that a plaintiff taking a cause out of its turn does so at his peril; and that, if the learned Judge had been informed of the facts, he would not have allowed the cause to be tried; and that there was no reason for imposing costs upon the defendant, when the plaintiff alone was in fault.

(a) H. 14 Geo. 2.

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