Q.B.D. The Queen v. Gibbon. 1880 tinguishes the case from Reg. v. Milledge ('), where the justices who heard the summons actually took part in the prosecution. Cur. adv. vult. Dec. 21, 1880. MANISTY, J., delivered the judgment of the Court. This rule was argued before the late Lord Chief Justice and myself. The question was whether the justices against whom the rule was obtained were warranted in refusing to proceed with the hearing of a summons which had been issued by a justice who was a member of the municipal corporation on whose behalf the prosecution was directed. [The learned judge stated the facts and proceeded:] The justices refused to proceed upon the information, upon the ground that it was laid before a justice of the peace who was a member of the corporation, being one of the town council. I think they were right, and that Reg. v. Milledge () governs the case. There is no doubt this distinction between this case and Reg. v. Milledge('), that there justices who were members of the town council were present at the hearing of the summons. But it was urged, as in this case, that there was an enactment which enabled justices to act in public health matters, although they were also members of the local authority. The court, however, held that notwithstanding this qualification the justices could not act in cases where they were virtually prosecutors. In the present case the corporation being entitled to the penalty were the prosecutors, and one of the council must be taken to have acted as a judge in considering the case before granting the summons. The two cases are in principle undistinguishable. This is the case of an information laid by the prosecutors before one of themselves. The late Lord Chief Justice was of the same opinion when the case was heard, and I have no reason to suppose that he changed it afterwards. The rule must be discharged. Rule discharged. Solicitors for prosecution: Gregory, Rowcliffes & Rawle, for Brewis, St. Helen's. (1) 4 Q. B. D., 332; 28 Eng. R., 784. See ante, p. 330; 28 Eng. R., 785 note. 1880 Royle v. Busby. (C.A.) Q.B.D. 1711 [6 Queen's Bench Division, 171.] Dec. 17, 1880-(C. A.), Q.B.D. *ROYLE V. BUSBY & SON. Practice-Sheriff's Officer-Abortive Execution-Possession Money-Who liable to pay. The solicitors of a judgment creditor, in the course of their duty as such solicitors, lodged a writ of fi. fa, at the office of the sheriff, with a request for execution, giving however no instructions as to the selection of any particular bailiff. The sheriff employed one of his officers to execute the writ, which the officer thereupon proceeded to do. On an action being brought by such sheriff's officer against the solicitors of the judgment creditor to recover his fees for executing the writ: Held (affirming the judgment of Bowen, J.), that the solicitors were not liable to pay the fees; that the law, apart from a contract to pay them (express or implied), cast no such liability upon them; and that, from the mere fact that they in the ordinary course of their duty lodged the writ at the sheriff's office for execution, no such contract could be implied. Maybery v. Mansfield (9 Q. B., 754,) followed. THIS was an action by an officer of the sheriff of Cheshire against a firm of solicitors, to recover a sum of £28 11s., alleged to be due from them to the plaintiff, under the following circumstances. On the 31st of July, 1879, the defendants, who had acted as solicitors for the plaintiffs in an action brought by the Stavely Coal and Iron Company against a company of the name of W. & J. Garforth, Limited, in the course of their duty as such solicitors, lodged at the office of the sheriff of Cheshire, for execution, a writ of fieri facias issued on a judgment recovered by the plaintiffs in such action; the defendants, however, gave no instructions as to the employment of any particular bailiff. The sheriff employed the plaintiff to execute the writ. The plaintiff accordingly on the same day, 31st July, entered on the premises of W. & J. Garforth, Limited, and seized their goods. On the 26th of July, 1879, a petition to wind up W. & J. Garforth, Limited, had been presented in the Chancery Division of the High Court. But at the time of the abovementioned seizure, the plaintiff had no notice of such petition. On the 7th of August, an order was made by the Ex1721 chequer *Division staying all further proceedings in the action of the Stavely Coal and Iron Company v. J. & W. Garforth until the petition should be disposed of, and a copy of such order was on the following day, August 8th, served on the plaintiff. On the 26th of August, the plain (C.A.) Q.B.D. Royle v. Busby. 1880 tiff being in doubt whether he ought, under the circumstances, to remain in possession or withdraw, wrote to the defendants for instructions, but to that letter he received no reply. On the 7th of November, an order was made by the Chancery Division, ordering W. & J. Garforth, Limited, to be wound up. The plaintiff, having received no instructions to withdraw, continued in possession until the 17th of November, when he was served with a copy of the winding-up order; he thereupon withdrew, without having sold any of the goods seized under the fi. fa. The plaintiff then sued the defendants for his levy fee, and for 110 days' possession money in respect of possession, from the 31st of July to the 17th of November. The action was tried at the Manchester Spring Assizes, 1880, before Bowen, J., without a jury. His Lordship, on further consideration, gave judgment for the defendants, on the ground that, the execution having proved abortive, no beneficial service had been rendered by the plaintiff. The plaintiff appealed. Bigham, for the plaintiff: Two questions arise for decision in this case. The first is whether the action is brought between the right parties, whether, that is to say, the proper person to sue in such a case is the bailiff who did the work, or the sheriff who employed him, and further, whether the proper person to be sued is the execution creditor or his solicitor. The cases of Foster v. Blakelock (') and Walbank v. Quarterman (3), are authorities for the proposition that the solicitor of the execution creditor is the proper person to be sued, though it must be admitted that they, to a certain extent, turned on the fact of the selection of a particular bailiff by the defendant. The case of Brewer v. Jones (), however, went a step further. There the *bailiff was not spe- [173 cially selected by the solicitor, but the solicitor was, nevertheless, held liable. The solicitor has no authority to pledge his clients' credit; he then is the proper person to be sued. But is the bailiff the right person to sue? It is contended that a contract of employment arises between the solicitor and the bailiff from the mere fact of the lodging by the former of the writ of fi. fa. at the sheriff's office, (1) 5 B. & C., 328. (2) 3 C. B., 94. (3) 10 Ex., 655. Royle v. Busby. 1880 (C.A.) Q.B.D. with a request that it should be executed; and that Brewer v. Jones () is an authority that the sheriff is the agent of the solicitor to select the bailiff. The second question, which is the only one which was argued before Bowen, J., is whether the plaintiff is entitled to his fees notwithstanding that the execution proved abortive. The learned judge decided this question in the defendants' favor on the authority of Cole v. Terry (2) and Newman v. Merriman (3). But those were cases in which the goods seized by the sheriff's officer were not the goods of the judg ment debtor at all, and therefore have no application to such a case as the present, in which the goods seized were at the date of the seizure the property of the judgment debtors, W. & J. Garforth, Limited, the winding-up order not having then been made, and the goods consequently not having at that time vested in the official liquidator. It is true that when once the winding-up order was made, the execution was void to all intents and purposes by virtue of s. 163 of the Companies Act, 1862. But until that event happened there was always a chance of the petition being dismissed, and therefore the levy by the plaintiff and his remaining in possession, at all events up to the date of the winding-up order, were beneficial to the defendants in this sense, that they conferred on them the chance of reaping the fruits of their fi. fa. The way in which events subsequently turned out cannot affect the question. The plaintiff therefore contends that the cases relied on by Bowen, J., do not apply, and that even if they do he was wrong in holding that the services rendered were not beneficial. Henn Collins, for the defendants: First, as to the parties. The cases of Maybery v. Mansfield () and Seal v. Hud174] son () are directly in point in the defendants' favor, and show that an attorney who does nothing more than lodge a writ for execution at the sheriff's office is not personally liable for the fees. The only authority cited against the defendants is Brewer v. Jones ('). But that case purported to be decided on the authority of Walbank v. Quarterman (), in which case the attorney himself engaged the plaintiff. Brewer v. Jones () must be regarded as wrongly decided. As to the second question, the defendants contend that there never was any real possibility of benefit; the possi (1) 10 Ex., 655. (2) 5 L. T. (N.S.), 347. (+) 9 Q. B., 754. (C.A.) Q.B.D. Royle v. Busby. 1880 bility of the petition being dismissed was so remote as not to amount to a practical possibility at all. But even if there was a possibility, the risk of its ultimately failing should be run by the sheriff's officer, not by the defendants. Bigham was heard in reply. LORD SELBORNE, L.C.: This appeal raises the question whether a sheriff's officer can maintain an action for his fees and possession money against the solicitor of an execution. creditor, where the solicitor has done nothing more than deliver a writ of fieri facias to the sheriff for execution? It is not contended that the law, apart from contract (express or implied), casts any such liability upon the solicitor. The sheriff is an officer of the law, with subordinate officers of his own appointment, for whose acts and defaults he is responsible. He and his officers are, by statute, entitled to certain fees, but the statute does not say that the solicitor of the execution creditor is to pay them; and, whatever the remedy for them may be, when the proceeds of an execution are insufficient, there is no reasonable ground on which it can be implied that the solicitor, who, in the proper and ordinary course of his duty to his client, simply delivers a writ to the sheriff for execution, thereby enters into a personal contract to pay such fees. * It was held, in several cases which preceded Brewer v. Jones (1), that a request by the solicitor that a particular bailiff might be employed to execute the writ was evidence. of a contract by him to pay that bailiff's fees and possession money; and in one of those cases, Foster v. Blake 175 lock(), the distinction was expressly pointed out by Mr. Justice Bayley between such a state of circumstances and that which exists where the solicitor merely delivers the writ for execution to the sheriff. Maybery v. Mansfield (*) and Seal v. Hudson (*) were cases in which there was in fact nothing more than the delivery of the writ to the sheriff, and in both those cases it was held that there was no evidence of any contract, and that the solicitor was not liable. In Brewer v. Jones (') the Court of Exchequer arrived at an opposite conclusion, upon the authority (as it considered) of Walbank v. Quarterman (); and it is remarkable that the judges who pronounced that decision themselves regarded it as at variance with sound principle, and only justified it by that (supposed) precedent. Walbank v. Quarterman (), however, was decided upon the authority of Foster v. (1) 10 Ex., 655. (3) 9 Q. B., 754. (4) 4 D. & L., 760. (5) 3 C. B., 94. |