1880 Royle v. Busby. (C.A.) Q.B.D. Blakelock ('), in which the distinction already noticed was pointed out, and it was determined upon a state of facts similar to that which existed in Foster v. Blakelock ('). It is therefore no precedent at all for Brewer v. Jones (), which thus stands self-condemned as against sound principle, and is opposed to the judgment of a court of co-ordinate jurisdiction, and of equal authority, in Maybery v. Mansfield (). We have no hesitation in following Maybery v. Mansfield (3) in preference to Brewer v. Jones (†). This point (which, on account of the state of authority, was not argued before Bowen, J.), is sufficient to dispose of the present appeal against the appellant. But it would not be right to pass over without notice the ground on which the judgment of that learned judge proceeded, which was founded upon the opinions expressed by Bramwell and Martin, BB., in Newman v. Merriman (), to the effect that a sheriff's officer cannot recover his fees from a solicitor when the execution has proved practically abortive and unfruitful. Those opinions were expressed in a case in which the goods seized were not the property of the judgment debtor, and I think it would be an error (on the assumption of a contract by the solicitor to pay the sheriff's officer what 176] he was *lawfully entitled to receive) to extend them to any case of a different kind. In the present case the judgment debtor was a joint stock company, against which there was pending, when the execution was issued, a petition to wind up, on which a winding-up order was afterwards made. The effect of that winding-up order was to defeat the execution, by the operation of s. 163 of the Companies Act, 1862. But I am not at all satisfied that it was the duty, or that it would have been consistent with the duty, of the sheriff's officer to withdraw from possession, without instructions from the execution creditor, until it was certain that such order, whereby the title of the judgment debtor to the goods might be displaced, would be made; or that, under such circumstances, he would lose his right to recover his lawful fees from any person, solicitor or not, who might have contracted to pay them. BAGGALLAY, L.J.: I am of the same opinion. I confess I should hardly feel inclined to draw the conclusion which was drawn by Bowen, J., that there had been no beneficial service by the plaintiff. The first point, however, is sufficient to decide the case. (1) 5 B. & C., 328. (2) 10 Ex., 655. (3) 9 Q. B., 754. (C.A.) Q.B.D. Royle v. Busby. 1880 BRETT, L.J.: I agree on the first point; on the second I express no opinion. Judgment for the defendants. Solicitors for plaintiff: Chester & Co. See 21 Eng. Rep., 553 note; 23 id., 211 note; 10 Alb. L. J., 197. One Huntington, after the recovery of a judgment against him by the defendant and shortly before the issuing of an execution thereon to the sheriff, executed and delivered to an assignee an assignment for the benefit of creditors, but at the time the execution was received the assignment had not been recorded, nor had the assignee given a bond or taken possession of the property. The sheriff, under the direction of the attorney for the judgment creditor, levied on certain of the property assigned by Huntington, but, in accordance with further directions from the attorney, took no further proceedings. Subsequently the property was sold by the assignee and a portion of the proceeds applied to the payment of defendant's judgment. In an action by the sheriff to recover poundage on the value of the property so levied on, not exceeding, however, the amount collectible under the execution; held, that he was entitled thereto Benedict v. Wright, 19 Hun, 27. The defendant in this action having been arrested by the sheriff under an execution against his person, issued upon a judgment recovered against him. the plaintiff served upon the sheriff the following notice: You are hereby authorized and requested to release and discharge from imprisonment the defendant, Albert Falk, in the above entitled action, upon his paying and satisfying all your legal fees, charges and expenses under and upon the orders of arrest and execution herein, under which the defendant, Albert Falk, is now in your custody." Held, that the sheriff was entitled to his poundage upon the execution, and that the defendant was not entitled to be released from custody until he had paid the same: Ryle v. Falk, 24 Hun, 255, 60 How. Pr., 516. When an execution is levied and staid, the officer making the levy is 29 ENG. REP. entitled to one half the commission he would have been entitled to, if he had sold the property and collected the money. The execution in this case was for $6,128.70 and interest and costs. The property levied on was worth $300. Half commission is allowed on the $300: Lipstine v. Campbell, 14 Bush (Ky.), 417. Two extents issued into different counties for the same debt; both sheriffs seized goods; the debt was paid to the one before a renditioni exponas issued to either. He shall have the whole poundage. But where the debt is paid to the officers of the crown immediately, although upon compulsion of the one levy, the poundage shall be apportioned between the sheriffs: The King v. Barber, 3 Anstruther, 717. Upon taxation by the judge, the sheriff's bill was allowed $32.13 for keeper's fees (in charge of a schooner levied upon). Held, that this allowance to the sheriff was erroneous. The statutory fees and poundage allowed to a sheriff are in full compensation for his services and expenses in executing the writ. He is not entitled to charge for the sevices of a keeper in charge of the property levied upon (Crofut v. Brandt, 58 N. Y., 106). Townsend . Ross, 45 N. Y. Sup. Ct. R., 447. If, after the levying of an execution under a judgment, the judgment on appeal be modified by reducing it in amount, the sheriff is only entitled to collect his fees on the amount of the judgment as modified, even though he has never released his original levy: Dole e: N. Y. Central, etc., 1 Buffalo Superior Ct. R., 291. The sheriff who employs a jailer, and not the county, is liable for payment for his services. The salary provided by law to be paid the sheriff is intended as a full compensation for all services for which payment is not otherwise provided, and he cannot recover for services he may 70 render as jailer: McDonald v. Woodbury County, 48 Iowa, 404. Lands were conveyed to a mortgagee in consideration of his cancelling a mortgage thereon given by the grantor and his wife. They fraudulently concealed the existence of a judgment obtained against them by collusion, and levied on the premises the day before the transfer: Held, that the cancellation should be set aside and the lien of the mortgage re-imposed on the lands; and that the judgment creditor be restrained from selling the premises except subject to the mortgage: Young v. Hill, 31 N. J. Eq., 429. A mortgagee of land, to correct a mistake in his mortgage, discharged it of record and took a new mortgage, in ignorance that an intervening mortgage had been given and recorded. After knowing the facts he sold the land under the power contained in his mortgage, bought it himself, brought an action against the mortgagor to recover the balance remaining unpaid on the mortgage note, obtained judgment, and on execution soid all the property of the mortgagor. Held, that he could not, after all this, maintain a bill in equity against the mortgagor and the other mortgagee, to have the discharge of the first mortgage cancelled: Childs 2. Stoddard, 130 Mass., 110. Where a discharge of mortgage is given on the receipt of less than is due, by reason of an erroneous computation of interest, it is not a matter of course for equity to interfere afterwards to correct the error. Where a circumstance appeared in the case which would render it inequitable for the holder of the mortgage to collect the full amount of interest, a court of equity, irrespective of strict legal rights, will decline to interfere on his behalf: Wright . Garrison, 40 Mich., 50. Where an attorney-at-law releases a judgment of his clients without their knowledge or consent, such release is a fraud upon them, and does not discharge the lien of the judgment. M. assigned a judgment to H., an attorney-at-law, "to be held by H. as collateral security for the payment of the claim of B. & K., for which claim I have this day given to the said B. & K. three promissory notes." This assignment was recorded. H. afterwards (C. A.) Q.B.D. gave a release of this judgment, the record entry being "for value received, H. releases from the lien of this judgment the real estate of *** but does not satisfy the judgment." Held, that this record gave sufficient notice of an implied breach of trust to make inquiry a duty, and a purchaser must be affected thereby, and that a release thus executed did not discharge the lien of the judgment: Kirk's Appeal, 87 Penn. St. R., 243; S. C., 30 Am. R., 357-358 n. The transfer of a promissory note carries with it the mortgage executed to secure it, and the mortgagee, after the transfer of the note, has no such control over the security that he can discharge or impair it to the prejudice of the transferee. The assignee of a promissory note is not chargeable with the fraud of the mortgagee in procuring the registry of a mortgage executed to secure it: Vandercook . Baker, 48 Iowa, 199. A mortgagee may release part or the whole of the mortgaged premises without inquiring whether a junior incumbrancer has intervened. It is the duty of the latter, if he intends to claim an equity through the prior incumbrance, to give the holder notice, so that he may act with his own understandingly; and if he fails to do so, the consequences of his neglect must be visited on himself. The possession of one lot of a piece of ground for the erection of a building, when the whole piece is covered by a prior mortgage, and the fact that a builder is actually at work constructing said building are not notice to the holder, the duty of inquiry as to the existence of the lien, or give the builder an equitable right to insist upon a reduction of the mortgage debt proportonate to the value of another lot or lots released from the mortgage: Mellvain v. Mutual Assurance Co., 93 Penn. St. R., 30. Where a judgment creditor levies his execution upon personal property, it is not such a satisfaction as will release the lien of his judgment upon real estate, nor postpone it to the lien of junior judgments. Where one who had a judgment sixth in order, and by his execution had the second lien on the personalty, purchased the first judgment and released the C.P.D. Grainger v. Aynsley. levy of the first execution on the personalty, and levied the one issued on the junior judgment on the same property, and satisfied the last judgment by levy and sale of the personalty; held, that the first judgment was neither satisfied nor postponed to the lien of the intervening judgments: Burke's Appeal, 89 Penn. St. R., 398, 1 Week. Jur., 67, 72 note. In the absence of legislation to the contrary, a court has the discretion to permit an officer to amend a return with or without notice, and at any time after the date thereof, so as to bind the parties to the action, or those claiming under them as privies. But a court cannot authorize a return to be amended so as to affect the rights of third persons, acquired in good faith prior to such amendment. An amended return, as between the parties to the action of their privies, whether made with or without notice, cannot be questioned by them collaterally: Rickards e. Ladd, 8 American Law Record, 264. An order setting aside a foreclosure sale, and opening the case, cannot be made without bringing in such third persons as have acquired rights under the sale: Jewett v. Morris, 41 Mich., 689. Where property, to which a judgment debtor has no title, is sold on execution and the judgment satisfied, the satisfaction may be vacated, but the rule will not be applied where the debtor had a title or interest, but not a valuable one. The purchaser takes at his own risk: Holtzinger . Edwards, 51 Iowa, 383, 1 North Western Reporter, 600, bottom p. An execution in favor of the plaintiff was levied on a piece of land, and the execution returned satisfied. The land proved to be subject to the debts of an estate to which it had belonged, and was afterwards sold by order of the probate court to pay the debts. There were reasons for regarding the order of sale as defective, but it was not void. Held, in an action of debt on the judg. ment: 1. That if the sale was valid, it vested a title in the purchaser over that of the plaintiff. 2. That the order of sale, if defective, was good until set aside on appeal. 3. That it was not the duty of the plaintiff, for the purpose of protecting his own title, to have taken an appeal. 4. That the levy of the execution proving to be fruitless, the judgment was unsatisfied, and an action of debt upon it could be maintained: Clarkson v. Beardsley, 45 Conn., 196. [6 Queen's Bench Division, 182.] Nov. 29, 1880-C.P.D. *GRAINGER, Appellant; AYNSLEY & Co., Re- [182 spondents. BROMLEY, Appellant; TAMS, Respondent. Employers and Workmen Act, 1875 (38 & 39 Vict. c. 90), ss. 4, 10—“ Workman”– Potter's Printer-Breach of his Contract through Strike of Assistants employed by lim. By the Employers and Workmen Act, 1875 (38 & 39 Vict. c. 90), s. 4, "a dispute under this act between an employer and a workman may be heard and determined by a court of summary jurisdiction, and such court, for the purposes of this act, shall be deemed to be a court of civil jurisdiction" limited to £10. By s. 10, In this act the expression workman,' . . . means any person who, being a laborer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labor, . . . has entered into or works under a contract with an employer, whether the contract be a contract of service or a contract personally to exe cute any work or labor." 1880 Millington v. Loring. (C.A.) C.P.D. The expression "court of summary jurisdiction" means (inter alia) a stipendiary magistrate: Held, that a potter's printer, under a contract with his employers to do work in which he was assisted by "transferrers" whom he himself engaged and paid, was a "workman' within the act, and liable in proceedings before a magistrate to pay damages for a breach of his contract with his employers, caused by his transferrers' refusal to do the work, although he was ready and willing to do it." 1901 [6 Queen's Bench Division, 190.] Dec. 18, 1880-(C.A.), C.P.D. *MILLINGTON V. LORING. Practice-Pleading-Breach of Promise of Marriage-Special Damage-Matter of Aggravation-Averment of-Rules of Court, 1875, Order XIX, rule 4; Order xxvII, rule 1. A statement of claim, after alleging a promise by the defendant to marry the plaintiff, went on to allege in paragraph 4, that, "the plaintiff relying upon the said promise permitted the defendant to debauch and carnally know her, whereby the defendant infected her with a venereal disease." It then alleged a breach of the said promise. An order having been made at chambers, to strike out paragraph 4 of the claim: Held, reversing the decision of the Common Pleas Division, that the order was wrongly made, and upon two grounds; first, that the facts alleged in the paragraph complained of, were "material facts" within the meaning of Order XIX, rule 4, and as such were properly pleadable; and secondly, that, even if they were not, the court had no power to strike the paragraph out, the statements therein neither being scandalous nor tending to prejudice or embarrass the fair trial of the action within the meaning of Order xxvII, rule 1. STATEMENT of claim alleged a promise by the defendant to marry the plaintiff. Paragraph 4: That the plaintiff relying upon the agreement permitted the defendant to debauch and carnally know her, whereby the defendant infected the plaintiff with a venereal disease. Paragraph 5 alleged a breach of the promise of marriage. The defendant applied at chambers for an order to strike out or amend paragraph 4 of the statement of claim. The master made no order. On appeal, Hawkins, J., ordered the paragraph to be struck out." The plaintiff appealed. Dec. 7, 1880. Somervell, for the plaintiff: Paragraph 4 should be allowed. Seduction is matter of aggravation in actions for breach of promise of marriage, Berry v. Da Costa (), by reason of the plaintiff's "prospects of marrying another being materially lessened:" per Willes, J. (†). (2) Law Rep., 1 C. P., 331, at p. 333. () Law Rep., 1 C. P., 331. |