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1834.

Dixon v. Ensell. THIS wa was a motion by the sheriff under the Interpleader The sheriff, in

applying for reAct.

lief under the InterpleaderAct,

should come Platt for the assignees, and Hayes for the execution promptly, but a creditor, contended that the application was out of time. will, under spee

cial circumThe rule was dated April 16th, and the execution was so

stances, be alfar back as the 12th of June; a claim under a bill of sale lowed.

Where there was made on July the 25th; and on September the 17th was great delay there was notice of a fiat in bankruptcy against the in the part of defendant. They cited Devereux v. Johns (a), and particu- plying to the

Court, in conselarly Cook v. Allen (6), where the Court held that the quence

tiations between sheriff must come promptly.

the parties, and the execution

creditor asterJeremy for the sheriff.—The motion was originally made wards abandon

ed his claims, on the 22nd of January, but the affidavits were then or- the Court re

fused to make dered by the Court to be amended for the purpose

of

the latter pay denying collusion (c). Previously to that, a long corre- costs. spondence had been going on between the parties, particularly during Michaelmas Term.

nego

The Court (d) held, that, under the special circumstances of the case, the application was not too late.

The execution creditor having afterwards abandoned his claim, the Court ordered each party to pay his own costs.

(a) Ante, Vol. 1, p.

548. (6) Ante, Vol. 2, p. 11.

(c) But in the cases of Doniger v. Hinzman, ante, p. 424, and Dobbins v. Green, ante, p. 427, note (6), in the King's Bench Practice

Court, it was held that it is not necessary for the sheriff to deny collusion.

(d) Parke, Bolland, Alderson, and Gurney

1834.

Taylor v. FRASER. A plaintiff can- SANDFORD shewed cause against a rule which had not be required to give security been obtained by Hance, calling on the plaintiff to give for costs unless security for costs, upon the usual affidavit of his being out it appears that he is gone

of the country. From the affidavits in answer it appeared abroad for more than a mere that the plaintiff was a West-India merchant, and that he temporary ab- had a domicile here; that he was at present in Southern

Australia, and was only gone abroad for a temporary purpose, and was expected to return shortly. He cited Tullock v. Crowley (a), Anonymous (6), and Cole v. Beal (c).

sence.

Vaughan, B.—This is not a case to which the rule requiring security for costs applies.

The other Barons concurred.

Rule discharged, with costs.

In another case(d), Byles moved for security for costs, on an affidavit that the plaintiff was gone to Sierra Leone, and had been out there for three months past.

Gurney, B.—That is not sufficient. You must shew that he is not gone for a mere temporary purpose.

Rule refused.

(a) 1 Taunt. 18.
(b) 2 Chit. 152.
(c) 7 Moore, 613.

(d) Boustead v. Scott, Exch. E. T. 1834.

1834.

Knowles, Executrix, v. Lynch. COM YN moved, upon the statute 19 Geo. 3, c. 70, The rule for a S. 4 (a), for a certiorari. Final judgment had been ob

certiorari under

the 19 Geo. 3, tained in an inferior Court of record for upwards of 201.; , 70, s. 4, is

absolute in the and it was sworn that diligent search and inquiry had been first made for the person and effects of the defendant within and applies to

all cases where the jurisdiction of that Court, under the execution which the defendant had issued, but that neither could be found.

It was doubted whether it was a rule nisi only or abso- rior jurisdiction. lute in the first instance, and whether (the debt being above the sum stated in the preamble) the act applied. subsequent day, the practice having been inquired into

removes himself and his effects out of the infe

On a

Lord LYNDHURST, C. B., granted a rule absolute in the first instance, saying, he thought it was within the act, and that the enacting part went beyond the preamble.

Rule absolute.

(a) By which, after reciting obtained, and of diligent search that persons served with process and inquiry having been made af. issuing out of inferior Courts, ter the person of the defendant, where the debt is under 101., or his effects, and of execution (the 7 & 8 Geo. 4, c. 71, s. 6, having issued against such person extended the sun to 201.), may, or effects, and that they are not to in order to avoid execution, re- be found within the jurisdiction move their persons and effects of the inferior Court, to cause the beyond the limits of the jurisdic- record of the said judgment to be tion of such Courts, it is enacted, removed into such superior Court, “ that in all cases where final and to issue writs of execution judgment shall be obtained, in thereupon to the sheriff of any any action or suit, in any inferior county or place against the deCourt of record, it shall and may fendant's person or effects, in the be lawful to and for any of his same manner as upon judgments Majesty's Courts of record at obtained in the said Courts at Westminster, upon affidavit made Westminster.and filed of such judgment being

1834.

HARRIS v. Davies. R. V. RICHARDS applied to the Court respecting the Where, in consequence of the defendant, for charging whom in execution he had before Marshal of the obtained a rule; he stated, that, in consequence of the King's Bench Prison, there

death of the Marshal of the King's Bench Prison, no

one at the prison would receive the defendant. gaol who would receive a prisoner charged in execution,

ALDERSON, B.-You must have more time, by leave of the Court en- the Court. larged the time.

was no one at the

EATON v. SHUCKBURGH, Bart. Hill shewed cause against a rule obtained by HumA proposal to refer, made after the commis- frey for the costs of the day for not proceeding to trial, sion day, held

on the ground that there had been a proposal made to the plaintiff in refer, which was the cause of the plaintiff's not proceednot proceeding to trial, and that ing; but it appearing that the proposal was not made till he was liable

not to warrant

after the commission dayto pay the costs of the day.

The Court said that it was then too late; and they made the rule absolute.

Rule absolute.

Dawson v. GARRETT. ARCHBOLD shewed cause against a rule calling on A cause (in which money had been paid

the plaintiff to shew cause why an attachment should not into Court) was issue against him for not paying costs pursuant to the referred, with all matters in Master's allocatur. difference, the costs to abide the event. The arbitrators found that the plaintiff had no cause of action, but that there was a sum of 101. due from the defendant for money lent to his wife, which was paid into Court:—Held, that the plaintiff was liable to pay the costs.

1834.

DAWSON

V. GARRETT.

The award, which set out a rule of Court, from which it appeared that the action was brought to recover a sum of money, and that 101. had been paid into Court, and that the parties had consented to refer the action and all matters in difference, and that the costs of the action and the costs of the award were to abide the event of the award, was in these terms: “I do award, that the plaintiff, at the time of the commencement of the action, had no cause of action save and except 101. lent by him to Hannah, the wife of the defendant, when sole, and that I find has been brought into Court.” The award was treated as being in favour of the defendant, and the Master taxed the costs for him.

It was now contended, that all matters in difference having been referred, the whole matter was opened, and the arbitrator had full power over the 101. paid into Court. Malcolm v. Fullarton (a). That the money was paid into Court on payment of the costs of the action up to that time, which admitted that there was once a cause of action; and upon

the other matters in difference a sum of 101. was found to be due to the plaintiff. The award, therefore, was in favour of the plaintiff, and the defendant ought to pay the costs. Secondly, it was argued that there were no words in the award requiring the plaintiff to pay any thing.

PARKE, B.-The award is founded on the rule which directs the costs to abide the event. That is against you, for the award is clearly in favour of the defendant. The 101. paid into Court were in effect struck out of the declaration, and, therefore, were no longer a matter in difference. In Malcolm v. Fullarton, no money was paid into Court.

ALDERSON and BOLLAND, Bs., concurred.

Rule absolute.

(a) 2 T. R. 645.

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