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there was no right of succession ; under the 6 & 7 Crown, by express enactment, has given the ChanWm. 4, c. 74, none of the vacant clerkships were cellor the power of appointment. to be filled till the then number of eight was re- PENNEFATHER, B.-I shall consider the conduced to six, that is a positive enactment that there struction of the 11th section alone, but, in so doing, was to be no succession then. After the reduction the provisions of the 4 Geo. 4, must be kept in to the number of six, the vacancies could only be mind, and, attending to the provisions of the 11th filled by the appointinent of the Chancellor, and so section, it appears to me clear from the last on, till a new succession had arrived ; though, in clause in the section, “that after the whole numone sense, Kelly, being at the head of the exist- ber of clerks shall have been appointed by the ing clerks, the first in order, and with a higher Lord Chancellor under this act, then such vasalary might be considered as chief clerk to answer cancy shall be filled by the senior clerk, to whom the description in the 1lth section, on considera- no sufficient objection shall be made," that the tion, I am not satisfied that he answers the descrip- succession upon which the relator relies, could not tion therein of chief clerk, he was not appointed with take place till six new clerks had been appointthe approbation of the Lord Chancellor, nor was ed. Taking into consideration the express enacthe entrusted with the responsible duties of the first ment, and general meaning of the legislature, clerk. It is not enough that Kelly is disqualified, I am also of opinion that the office of chief clerk it is a further question is Sugden entitled to the was personal to O'Keeffe, and the act is to be read office, or, in other words, had the Chancellor the as if it had said, that on a vacancy happening in right of appointment; the words of the act are- the office of Assistant-Registrar, the same was to be " that the chief clerk is to fill the office, if there filled by O'Keeffe. If this be so, it follows plainly be no sufficient objection,” if the Lord Chan- that Kelly can have no right. It remains then to cellor be not satisfied that he was free from objec. be considered where the right vested. This section tion, he was to appoint a fit and proper person, is not to be construed by the exact words, but by but there is nothing to shew that the chief clerk the purport and intention of the statute, and, cononly was to be appointed. We are not to suppose sidering the different parts of it so forcibly alluded a cassus omissus, if it be possible to avoid it. to by my brother Richards, I think this section This statute, and the 4 Geo. 4, manifest an inten- must be considered as having given to the Chantion to enable the Chancellor to appoint; this is, cellor a power of appointment, not confined to the I think, a strong argument to shew that such was single case of the disability of O'Keeffe, but whento be the case in future. I am therefore of opinion ever a vacancy should take place, reason and the judgment of the court below must be reversed. sense require this construction, and the cases cited

CRAMPTON, J.--I still retain the opinion I en- by my brother Lefroy fully establish this position. tertained in the court below. I think the judgment If the intention of the legislature is clear aud unein the Queen's Bench was right; that Sugden has quivocal, and if particular words are to be conshewn no right to the office under the statute, and trolled by the intention the legislature had in view, that Kelly is in by succession.

I am satisfied the Lord Chancellor had the power TORRENS, J.— I have arrived at the same con- of appointing a fit and proper person, till the time clusion as my learned brethren who have preceded when the right of succession had arrived. I do not me, and upon the same grounds. I think a satis- think there is in this case a casus omissus, or that factory conclusion can be arrived at, by considering such should ever be intended, where the legislature the state of the court before the passing of the profess to deal with the subject for legislation. 6 & 7 W. 4, c. 74. Under the provisions of the Attending to the words of the act, I think the previous act, the first clerk, before he could receive crown gave the court the right of appointment. his appointment, required the approbation of the Pigot, C. B.-Considering the language of the Lord Chancellor, and could not be removed without 1lth section of the 6 & 7 W. 4, c. 74, and the other it. O'Keefe alone was chief clerk, and no scrivenary portions of the act, I am of opinion there was no clerk could succeed, as there was then no right of succession; and that at the time of the appointment succession in the office of Registrar. The 6 & 7 of the plaintiff here, there was no chief clerk. The W. 4, legislated on this state of facts. Who are next question is, did the act confer on the Chanthe chief clerks? Two; Daly, who in the 22d cellor the right of appointment. I am forced to section we are told had been first clerk, and come to the conclusion there was a casus omissus, O'Keeffe, who is there also designated as first clerk. but whether the appointment be in the crown or The 11th section regulates all the offices of the the Chancellor, we must in this case assume that Court of Chancery, and, in doing so, took into the crown did not interfere, and, not having done consideration the position of Mr. Kelly, and the so, on the authority of Harding v. Pollock, I think other inferior clerks, and enacted that no subsequent the crown has given up the right of appointment, state of facts should remove them ; it then enacts and as it does not appear from the statute the that after a certain period those persons who had crown intended to reserve any right, we are wargone through a certain probationary state, should be ranted in holding that the appointment devolved on appointed to the office of Assistant-Registrar, leav- the Chancellor. ing to the Lord Chancellor the right to inquire into BLACKBURNE, C.J.-I am quite satisfied that their qualification. If the Chancellor had first the there is no succession in this office till the new power of appointment by approval, and after by order of clerks are complete. It is as plain as any selection, it is in my mind a strong argument to proposition can be, that the crown has no right of shew he was to have it in the interim, and that the appointment; the intention was to vest it in the Chancellor, with two exceptions, Robert Long, the Let the rule for the discharge of the defendant be then assistant-registrar, and O'Keefe, the descrip- made absolute, with costs, on the terms of his bring. tion of chief clerk meaning the latter as plainly as ing no action. if he were named. The court is bound to adopt Blackham having declined to accept these terms, that construction which will effectuate the intention his client preferring to bring her action, of the legislature, the authorities on this point are conclusive. I think there was a casus omissus,

BLACKBURNE, C. J., said the court would follow but that the crown has surrendered its right to the the practice of the Court of Exchequer, as stated Chancellor.

by Mr. Meagher, and restrain the plaintiff from

bringing her action. Judgment of Queen's Bench reversed.

Rule absolute, with costs.



FITZGERALD v. COATES.—Dec. 9. Practice---Concurrent Writs-Irregular Arrest. Practice-Interpleader ActCosts of Sheriff: A plaintiff cannot act upon two concurrent writs Where the sheriff has used due diligence the court of ca. sa. and fi. fa. at the same time.

will direct the costs of the rule to interplead, and å fi. fa. and ca. sa. having issued together, a small sum only was levied under the former, and

of attendance on the motion to be paid by the before returning the fi.fa. the defendant was taken

party who shall fail on the issue. in execution under the ca. sa.; the Court discharg. Hemphill on behalf of sheriff, moved pursuant to a ed her out of custody.

rule obtained under the Interpleader Act, an exeThe Court will restrain a defendant who declines cution had been lodged with the sheriff on the 25th to be put under terms, from bringing an action. November last, under which he seized certain fur

niture, &c. On Nov. 27th a claim was put in by a Writs of ca. sa. and fi. fa., having issued together third party to the furniture under seizure

. The against the defendant, returnable at the same time, sheriff obtained the ordinary rule on the 6th of a levy was made under the latter, the proceeds, December. after deducting the expenses of the exertion, amounted only to £3, the debt being £40. Before

O'Hagan appeared for the execution creditor. the fi. fa. was returned, the defendant was arrested Rollestone for claimant. on the ca. sa.

An issue having been directed, Hemphill applied Blackham, on a former day, having obtained a for the costs of the order, and the present motion conditional order to discharge the defendant out of to be paid by the party who should fail on the custody, on the ground that the ca. sa. could not be trial. The practice of the Court of Queen's Bench executed before the fi. fa. was returned,

is to give the sheriff his costs. There is a conflict of F. Meagher now showed cause. The sale bav

the cases in the Exchequer, but there is in court an ing proved inoperative, the plaintiff was entitled to order made by Baron Lefroy last Trinity Term for have recourse to the ca. sa., without waiting for the payment of the sheriff's costs by the unsuccessful return of the fi. fa, Edward v. Ross, (9 Price, 5); party. The act vests the fullest discretion in the Dicas v. Warne, (10 Bing. 341); Primrose v.

court as to the costs. Counsel also cited Burke v. Gibson, (2 D. and Ry. 193.) The plaintiff has Darcy, (9 I. L. R. 287.) not acted with oppression, and the court will not

PENNEFATHER, B.- 1 shall declare the sheriff eninterfere except in such a case.

titled to the costs of the rule and of this motion ; Blackham in support of his rule. A fi. fa. and the question as to which party is to pay him to ca. sa. may issue together and be concurrent, but abide the event of the trial. The sheriff has used if one be acted upon, a return of that must be great diligence here, coming in on the earliest entered before a proceeding, can be taken upon the opportunity.* other. Miller v. Parnell, (6 Taunt. 370); Hodykinson v. Walley, (2 Tyr. 974); Edmond v. Ross, (9 Price, 5); Kane v. Bridgman, (5 I. L. Rep. * Before Ponnefather, B, in Chamber. 222); Wilson v. Kingston, (2 Chit. 203). The cases cited at the other side do not apply, for in all of them the goods were in custodiâ legis ; no seizure could therefore be made, and the parties had not elected to proceed under the fi. fa.

BLACKBURNE, C. J.-Here is an execution executed, and before the plaintiff can have any

know. ledge of the amount of that levy, the defendant is taken on another writ, marked for the full annount.


there is judgment on process by original, it relates

to the first essoign day of Term. Thus, in Stanford Smith v. CHICHESTER.-Nov. 30.

v. Cooper, (Cro. Car. 102), a judgment was held JudgmentsPriority.

to relate to the first essoign day, instead of to the Judgments of the Exchequer rank in the same first day of the full Term. That is a strong case,

priority with those of the other Courts, obtained and shows the force given to a fiction of law, it in or as of the same Term, the Exchequer judy- being determined that even against a Statute ment having relation to the first day of Term, solemnly acknowledged, the Court will give effect although the day of the plaintiff's appearance to the fiction of relation. A decree of this court named in the declaration, be subsequent to it. is different, and in Morrice v. Bank of England,

(3 P. Wms. 401, note F), the decree of the Court This case came before the Court on exceptions to of Chancery being for a just debt, and having a the Master's report. Several creditors having judg- real priority in point of time, not by fiction and nents against the defendant, all of which being relation to the first day of Term, was preferred in entered during vacation, related generally to the the order of payment to the judgments, and the first day of the previous Term, the Master, in executrix protected and indemnified in paying a considering the priorities of these judgments, post- due obedience to such decree. But, with regard to poned that of Messrs. Rundell and Bridges, being judgments, among themselves their relation to the in the Exchequer, to those in the Courts of Queen's first day of Term, even in this court, is settled by Bench and Common Pleas.

Robinson v. Tonge, (3 P. Wms. 397). The general Christian, Q. C., for Rundell and Bridges, in doctrine is contained in the case of Brugner v. support of the exception. The Master reported Longmead, (7 T. R. 20,) which decides “ 'That a the Exchequer judgments puisne to those in the judgment signed in any part of the Term, or the Queen's Bench and Common Pleas, because the subsequent vacation, relates back to the first day of record in the Exchequer shews the date of the the term, notwithstanding the death of the defendappearance, which the others do not, but never- ant before judgment actually signed.” In that case theless they have relation to the first day of the Lord Kenyon says, “ If we were now to consider Term. Burrough v. Williamson, (11 1. E. R., not for the first time, whether legal relations and legal published); Stanford y. Cooper, (3 Cro. 102).

fictions should be adopted, we would inquire into, Gayer, Q.C., for report.- The doctrine of relation and sift most minutely the foundations on which does not take place where the record shews that the they could be supported, but it is now too late for us, judgment could not have been recovered on the sitting in a court of law in the eighteenth century, first day of Term. AnonyHous, (3 Salk. 212); to consider whether or not that which has at all Sænn v. Broome, (3 Bur. 1595); Hynde's case, times been considered as law, should continue to be (4 Co. Rep. 71.b).

law now.

In this case, we are bound by a current Pilkington for another creditor, in support of of authorities all speaking the same language." In the report, referred to Porchester v. Petre, (3 Javil v. Wiltshire, (Willes, 428), a siinilar doctrine Dougl. 274); Miller v. Bradley, (8 Mod. 190); obtained when “the whole court were of opinion Huys v. Wright, (Yelv. 35).

that the statute 29 Car. 2, c. 3, strengthens the case, Rogers, in reply, cited Att-Gen. v. Andrews, for that statute was drawn by Lord C. J. Hale, (Hardres 23); Doe & Davies v. Creed, (5 Bing, and provided only for judgments affecting lands, in 327); Bragner v. Langmead, (7 T. R. 20, 21),; the case of purchasers, leaving them in all other Calvert v Tomlin, (5 Bing, 1); Ex parte Birch, cases to the course of the court, where, though (4 B. & C. 880); Greenway v. Fisher, (7 B. & C. entered after the death of the parties, they have 436); Witton v. Girdlestone, (5 B. & Al. 847).

relation to the first day of Term if signed in Term, LORD CHANCELLOR.-In this case the judgment if signed out of Term, to the first day of the preobtained by Messrs. Rundell and Bridges has been ceding Term.” The same doctrine is held in Doc postponed to those of creditors who obtained judg: v. Magill, (1 H. & Bro. 396,) and Calvert v. Tomlin, inenis in the same term, but in different courts. It (5 Bing. 1; 2 Moo. Paine, 1 S.C.) that the statute of appears that all the judgments in question were frauds has no relation between creditors, it was entered in vacation, that of Messrs. Rundell and passed only for the protection of purchasers. For Bridges in the Court of Exchequer, and, according the general doctrine there is ample and unvarying to the practice of that Court, the plaintiff states his

authority. But it is now contended that though own day of appearance, which in this instance was this is so in general, yet if there appears on the on a day subsequent to the first day of Term; and record any date which shows that judgment could it is contended that a judgment upon a declaration, not have been actually recovered on the first day which on the face of the record appears to have of term, the relation is only to the day which been filed on a particular day, cannot relate to the first day of Terin, or farther back than the day appears on the record, and this is said to be founded

on the authority of a dictum of Lord C. J. Holt in mentioned in the declaration. There can be no

3 Salk. 212:--“ A judgment shall have relation doubt that in point of law all judgments are considered as having relation to the first day of Term. to the first day of the Term, as if it were given on

that very day, unless there is a memorandum to the The authorities are uniform with the distinction

contrary, as where there is a continuance of the noticed in Whittaker v. Whittaker, (8 B. & C. 768);

cause till another day in the saine Term.” It is imSumuel v. Evans, (2 T. R. 569). That where the portant to observe that what the dictuin mentions proceedings are in the Queen's Bench by bill, they as having the effect of preventing relation to the relate to the first day of Term, but that where I first day of Terin, is a continuance, which is the act of the court. In Miller v. Bradley (8 Mod. 190), judgments in the Exchequer relate, not to the first it appears that a judgment was given on the last day of the Term, but to the day on which the party day of Term, and the plaintiff having issued a tes- came there. What is there to prevent the relas tatum ca. sa, on, it

, it was contended that that was tion?. Only that the party filed the bill on a para irregular. But the court held—“ This is a judg- ticular day; the declaration is entitled generally

, ment of the first day of the Term in which it was and there is nothing to shew that the party obtained, by relation which is sufficient to ground was not in court the whole Term. In Dobson va a ca. sa., and by consequence a testatum ca. sa.; Bell (2 Lev. 176), “ Trover was laid the first day and if there is no difference between an action by of Easter Term, and the declaration was generally bill and by original, it is regular. As to the conti. of the same Term. Whereupon after verdict nuances being carried on from one Term

to another, quer, this matter was moved in arrest of judginent ; no such thing appears on the record, so this exe. but upon making it appear that the bill was filed, cution is regular. It is true, if the continuances and the declaration also delivered, both after the had been entered no execution could be prior to 20th day of April, the judgment was entered for such entry; and so is the case Prince v. Haughton, the plaintiff without any amendment, though the and Dobson v. Bell.So the case before C. J. declaration, being general, relates to the first day Holt, and the case 8 Mod., do not carry the excep- of Term, yet the bill, being filed at a day after, ail tion farther than this, that if there be a continuance relates to the filing of the bill by the course of the on record, the doctrine of relation will not operate court; of which course, if error be brought, the to carry the judgment farther back than the day of court where the error is brought will take notice the continuance. Huys v. Wright (Yelverton, 35) as to the customs of this court. Now, in the Court was an action on an award made in Easter Term, of Exchequer, what more is done than that you that the defendant should cease all actions against may file a declaration entitled generally of the Term. the plaintiff, and should release all demands. The The course to be taken on warrants of uttornes is breach assigned was, that the defendant had not pointed out in the books of practice. Howard, Ex. ceased his action, but had prosecuted it, and after- Pleas Pract. 302, says, “When the person who gives wards obtained judgment against the plaintiff in a warrant of attorney to confess judgment, dies before the same Term. The defendant pleaded non judgment is entered, if he dies in the vacation time, assumpsit; on a motion in arrest of judgment, it and the warrant of attorney was executed before was argued that there was no breach, because the the vacation, judginent may be entered any day judgment related to the first day of Term. The before the essoign day of the ensuing Term, as of court at first admitted that, but afterwards said the preceding term, by making the day of appear. that the defendant had filed a pleading confessing ance on any day in the preceding Term, subsequent that the judgment had been obtained after the to the day on which the warrant was executed." award. In fact, they did not refer to the record of It seems, therefore, that the day of appearance enthe original judgment, and held they could not tered is in the discretion of the officer of the court. look at it. Lord Mansfield, in Porchester v. Petrie It is not like a continuance, an act of the court (3 Doug. 274), seems to have mistaken Hynde's appearing on the record. It is now too late to hold cuse (4 co. 70 b.), which appears to have been the that judgments do not relate to the first day of the same in principle as Huys v. Wright, there the Term in which they were obtained, and it would inparty having demurred to a pleading which alleged troduce a novelty in practice. The Exchequer that the enrollment of a deed bad occurred after does just what the other courts do, as I have a fine had been levied, and the court held that the poiuted out, and therefore, upon these grounds demurrer admitted that fact. In Porchester v. this exception must be allowed. Petrie, the question did not arise. In Swan v. Broome (3 Bur. 1595), a recovery was questioned on this ground: the return day of the writ of sum

ROLLS COURT. mons happened to be on a Sunday, on which day

BLAKE v. FFRENCH. the tenant died; and the court held, that as it appeared by the record that the return day was Sun- Fulton, Petitioner, Farran, Respondent.-Nor. 13. day, on which day judgment could not be given,

3 & 4 Vic. c. 105, s. 23. and as the judgment could not relate to a previous Judgment Creditor-Petition--Charging Orderday, the recovery was bad. All that is in con

Payment of Money. formity with the doctrine of relation, and the language of the Statute of Frauds, “ that judg

Where a charging order has been obtained by a ments of the King's Courts at Dublin do many

judgment creditor upon funds reported to a times relate to the first day of the Term whereof

creditor in a cause, the Court, where there is no they are entered, or to the day of the re

controversy as to the right of the petitioner to the turn of the original, or filing the bail” does not

fund charged, will direct the fund to be paid distinguish between the Exchequer and the other

to him without a bill being filed. King's Courts. Now, the question is, whether there Semble, that where there is a conflict of rights, is anything in the practice of the Court of Ex

the fund will not be transferred upon motion. chequer to introduce a distinction between the This was an application that two sums of stock, judgments of that court and those of any other. I which, by an order bearing date the 19th day of may say that no such distinction has ever yet been February, 1848, and made in the cause of Blake acted on. There cannot be found any case in which v. Ffrench, had been transferred to the separate there is the slightest allusion to the doctrine, that credit of the respondent Farran, a reported creditor

in the cause of Blake v. Ffrench, might be paid ceiver might be directed to pay him £100 out to Fulton, the petitioner. And, by an order of the moneys coming to the annuitant. The Vicebearing date the 18th of January, 1848, made in Chancellor held, that as the lady appeared by the matter of Fulton, petitioner, and Farran, re- counsel and opposed the petition, he had no jurisspondent

, the interest of the respondent in the fund diction to make the order ; but that a bill inust be standing to the credit of the cause of Blake v. filed. Newton v. Askew (12 Jur. 766), shews that Ffrench, was under the 3 & 4 Vic. c. 105, charged Whitfield v. Prickett is Ìaw in England, and supwith payment of two judgment debts due to the ports Lord Langdale's reading upon the cor petitioner, and upon the 12th of February, 1848, responding statute in England, and the jurisdiction the charging order was made absolute.

under it. In the present case, the petitioner is By the said order of the 19th of February, under obligation to other persons to pay them out 1848, made in the cause of Blake v. Ffrench, the of the fund now sought for. suin of £977. 2s. 7d. was directed to be trans- THE MASTER OF THE Rols.--In this case, on ferred to the separate credit of William Farran, the the 18th of January last, a conditional order had respondent.

been made, that certain stock, which has subseHamilton Smythe.The question in this case is, quently been transferred to the separate credit of whether the petitioner is entitled to have this sum the respondent, by an order made in the cause of paid out six months after the charging order was Blake v. Ffrench, should, under the 23rd section of made absolute, without filing a bill. By the 3 & 4 the 3rd & 4th Vic. cap. 105, stand charged with the Vic. c. 105, s. 23, it is enacted that “such charging petitioner's demands. This conditional order was order shall entitle the judgment creditor to all such made absolute on the 12th of February following, remedies as he would have been entitled to if such the Master having, in the interim, made his allocacharge had been made in his favour by the judg. tion report, dated the 24th of January. I may ment creditor.” The language of the act gives the here remark, according to a case decided in the Court party the same benefit as if the fund had been of Exchequer, the conditional order was irregular; charged in his favour by the owner. The case of for that court will not make a charging order beBurke v. Burke, (7 I. E. R. 174,) is directly in fore an allocation report has been made, and I point, and the order to transfer the fund was there think that practice is convenient, but it does not made upon motion. Whitfield v. Prickett, (13 Sim. apply in this case, for there has been no applica259,) is not an authority against this motion. That tion to set aside the order, though more than six and the other English cases all proceed on the prac- months bave elapsed since the charging order. tice, that it is not the course to pay out money to an In this case, the owner is interested in supporting assignee of a fund upon motion, unless by consent of the order, for a much larger sum is due to Mr. the assignor. In this country, however, the practice Fulton than the sum sought to be transferred; but is different, for upon an ordinary motion to pay out it is said, I have no jurisdiction under the act to funds pursuant to an allocation report, it is usual order this stock to be transferred, and that a bill to entertain motions upon behalf of persons to must be filed for that purpose. The cases of whom funds have been assigned, or in whose favour Whitfield v. Prickett and Newton v. Askew, have they have been charged. In the case of

been cited in support of that position. At page petitioners, and Bridgeman respondent, unreported, 768 of the report of Newton v. Askew, in 12 Jurist, upon application by the judgment creditor (of a Lord Langdale expresses himself of opinion, that party who was tenant for life of a fund in court) for the charging order is, in effect, a stop order, and a receiver, or to have the dividends paid out, it nothing more. When the late Master of the Rolls was ordered that the dividend should be paid to decided the case of Burke v. Burke, the case of the judgment creditor in satisfaction of his Whitfield v. Prickett was not before him, not being demand.

then reported, and the difficulty I have in this case Richard Armstrong contra.— It must be ad- is to reconcile these decisions. i think, however, the mitted that this court has been in the habit of best course to adopt is to follow the decision of substituting equitable assignees of a fund, and the late Master of the Rolls in Burke v. Burke ; making the payment to them of monies allocated to and, on considering the 23d section of the act, their assignor; but this practice appears not to be I have no doubt he was right, for in this court warranted except by consent. The practical in- I am constantly asked, on cross motions, to convenience of parting with a fund, in which parties make sub-allocations. Now, if this be not the may be interested who are not before the court, is habit in England, the cases are quite reconmanifest, and a motion should not be elevated into cileable. It is argued I am not to give this a hearing of a cause, and a settling of rights and charging order more effect than if the person him. priorities of different claimants to a fund. When self charged it, but am I to hold that it is not to Burke v. Burke was decided in 1844, Whitfield have as much effect? There is no question to be v. Prickett was not before the profession, the decided between the parties in a suit, if it were inreport not having been published till 1846, and the stituted, there being no controversy about rights. same observation applies to the manuscript case I think it is better for the suitors of this court to cited. In Westall v. Leslie reported in a note to abide by the practice as laid down in Burke v. Neate v. Pink (15 Sim. 453), in which a lady Burke, and if the practice of sub-allocation be not entitled to an annuity which the receiver in the the practice in England, the cases are quite reconcause was directed to pay her, charged it with cileable. I wish it to be distinctly understood that the repayment of £100 lent to her by one Carter, if there were a conflict of rights, I do not decide who presented a petition, praying that the re. I that a bill should not be filed; and I do not wish

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