1858.

VAUGHAN

It is impossible to suppose that the engine driver is liable to eighteen months imprisonment under section 84, and equally impossible to suppose there is no remedy against RAILWAY CO. either master or servant, for what is a wrong by one or both. We are of opinion therefore that this answer fails.

v.

TAFF VALE

The next answer was, that the Railway Clauses Consolidation Act, 1845 (8 Vict. c. 20), s. 86, afforded a defence to this action. Whether it would if there was no negligence other than the use of a dangerous instrument it is not necessary to say. But here there was abundance of such evidence, if the fire broke out in the defendants' lands, for the reasons before given. So indeed there was, if it broke out in the plaintiff's land; but anyhow it cannot be contended that the statute gives the railway company a right to throw lighted coals on the adjoining land. That would be a trespass.

It remains to notice another point made by the defendants. It was said that the plaintiff's land was covered with very combustible vegetation, and that he contributed to his own loss, and Mr. Lloyd very ingeniously likened the case to that of an overloaded barge swamped by a steamer. We are of opinion this objection fails. The plaintiff used his land in a natural and proper way for the purposes for which it was fit. The defendants come to it, he being passive, and do it a mischief. In the case of the overloaded barge the owner uses it in an unnatural and improper way, and goes in search of the danger, having no right to impede another natural and proper way of using a public highway. We therefore think the direction was right, the verdict satisfactory, and the rule must be discharged.

The learned Judge added that he abided by the opinion he expressed at the trial.

Rule discharged.

1858.

SEMPLE V. KEEN.

Nov. 10.

THE plaintiff having recovered judgment against the Plaintiff hav

ing a judgment

defendant

of ca. sa. with

defendant for 15997., a writ of ca. sa. was issued and placed against the in the hands of Slowman, a sheriff's officer, for execution. On the defendant paying down 2007. and agreeing to satisfy the residue of the debt by instalments, the plaintiff handed the following letter to the sheriff's officer:

lodged a writ the sheriff, and afterwards, by

letter, gave directions "not to execute the

"May 10, 1858. writ till further

notice." The defendant

"Dear Sir, Please do not execute the writ of ca. sa. being arrested

herein till further notice.

Yours truly,

"H. SEMPLE.

"To Mr. Slowman and the sheriffs of Middlesex."

On the 24th of June the defendant was arrested at the

suit of one Pritchard, when the sheriff's officer refused

on another writ, the officer detained him on the plaintiff's writ till he had communicated with the plaintiff, and then, on

the plaintiff's instructions, let

the defendant

go:-Held,

that, the de

fendant not

having been legally in cus

to discharge him except on payment of the balance of the
debt of 15997., saying that the notice of the plaintiff was
merely a direction not to take the defendant if he saw him.
As soon as the plaintiff heard of the detention of the
defendant, he directed the officer to let him
It was
go.
sworn that a notice to the sheriff's officer not to execute a

writ till further orders is a practice between attornies and
officers of the sheriff, whereby, if a defendant be taken at
the suit of any one else, he cannot be discharged without
the officer being bound to give notice to the attorney so
directing a suspension, in order that he may make fresh
terms, take fresh securities, or else withhold his assent to
the discharge.

J. Brown now moved for a rule to shew cause why

tody under the
plaintiff's writ,
the debt
was not satis-
fied by the

detention and

subsequent

discharge of

the defendant.

VOL. 111.-N. S.

EEE

EXCH.

1858.

SEMPLE

v.

KEEN.

satisfaction should not be entered on the judgment roll, the debt being satisfied by the arrest of the defendant on the ca. sa. and his subsequent discharge.-Though a direction not to execute a writ is a countermand of it, a direction not to execute it till further orders has not that effect. The defendant having been in custody under the writ, and having been discharged, the debt is gone. In The National Assurance Association v. Best (a) the countermand was absolute.

POLLOCK, C. B.-There will be no rule. The plaintiff may not be without means of redress for the arrest.

BRAMWELL, B.-It is clear there was no lawful arrest under the plaintiff's writ. If a defendant is arrested after explicit notice to the sheriff not to execute the writ, I think that an action lies against the sheriff. The practice in the sheriff's office does not alter the law, and it is consistent with the case of the plaintiff. The plaintiff, supposing that he would get notice if the defendant should be arrested at the suit of another creditor, keeps his writ in the office and tells the sheriff not to execute it. To tell the sheriff not to execute the writ, is to tell him not to execute it till further orders.

WATSON B.-I am of the same opinion. If a man is in custody on one writ he is in custody on all the writs in the office of the sheriff to be executed. The writ here was lying in the sheriff's office as an useless piece of paper till further orders; yet the defendant contends that he was in custody under it. If dissatisfied with our judgment, he has a remedy by auditâ querelâ.

CHANNELL, B., concurred.

(a) 2 H. & N. 605.

Rule refused.

1858.

METCALF and Others v. HETHERINGTON.

Nov. 24.

QUAIN had obtained a rule nisi to set aside the judg- Rule 176,

ment signed in this case by the defendant.

The declaration was delivered on the 9th of November, 1854. The defendant pleaded on the 27th of the same month. In Hilary Term 1855, the plaintiffs several pleas and demurred to the 2nd plea.

Hil. T. 1853, requiring a month's notice

of intention to proceed where

there have been no proceedings

replied to the

for one year,

Judgment on

applies to the signing of

1855; but no

judgment for

not proceeding

In

to trial under

the 101st sec

no

tion of the

the demurrer was given on the 11th of June,
judgment with respect to the demurrer was signed.
Trinity Term, 1856, the defendant gave twenty days
tice to the plaintiffs to proceed to the trial of the issues in

fact. Subsequently the plaintiffs applied to a Judge at
chambers to enlarge the time for proceeding to trial, but no
order was made. No proceedings were taken from the 11th
of July, 1856, when the summons was heard, till the 31st of
May, 1858, when the defendant signed judgment, the entry
of which stands in the books of the Court as follows:-

"31st May, 1858.

"Cumberland, for defendant.

"Plaintiffs not proceeding to trial.

"Thomas Metcalf, George Metcalf &c., against Robert
"Costs £

Hetherington.

A summons having been taken out to set aside the judgment on the ground that it had been signed prematurely, no proceedings having been taken in the action for more than twelve months and no notice of intention to proceed having been given in pursuance of Reg. Gen. Hil. T. 1853, . r. 176, Channell, B., referred the parties to the Court.

Milward now shewed cause.-Formerly it was not neces

Common Law

Procedure

Act, 1852.

sary to give a month's notice to proceed before obtaining a rule for judgment as in case of nonsuit. The twenty days notice to proceed is substituted for that rule. So where a party was entitled to judgment, as after verdict, or upon a Judge's order, and nothing remained to be done except the signing of judgment, a month's notice was not necessary: 1 Archbold's Practice, by Chitty and Prentice, 145. The 176th Rule of Hil. T. 1853, does not apply.

Quain, in support of the rule.-The twenty days notice to proceed to trial having been given in Trinity Term, 1856, which was the last proceeding, and upon which the defendant would have been entitled to sign judgment in November, 1856, the defendant could not sign judgment in May, 1858, without giving a month's notice. There is no analogy to the case of a judgment after verdict, when nothing remains but signing the judgment. The case resembles rather that of a writ of inquiry. By the Common Law Procedure Act, 1852, s. 101, the defendant is empowered "to suggest on the record that the plaintiff has failed to proceed to trial although duly required to do so,” and upon that judgment may be signed. The rule for judgment as in case of nonsuit was a rule nisi, and terms might have been imposed: it was therefore not analogous to this, which is an ex parte proceeding. [Channell, B.—The suggestion is a step in the cause. It is not to be "traversable, but only to be subject to be set aside if untrue." It is clear, therefore, that the plaintiff ought to have an opportunity of contesting it. Martin, B.-Surely the case is directly within the terms of the rule.]

POLLOCK, C. B.-The rule must be absolute to set aside the judgment; the costs of the proceeding before my brother Channell at chambers and of this rule to be costs in the cause.

Rule accordingly.