and in Michaelmas Term the present rule was obtained, at 1847. the instance of Robertson's executors. The question was, FISHMONGERS' whether the lapse of time after the expiration of two Terms

COMPANY

v.

and Others.

after the verdict was pronounced, could in this case be ROBERTSON considered as the delay of the Court. It was submitted that it could not. By the 17 Car. 2, c. 8, s. 1, the judgment might be entered within two Terms after the verdict, notwithstanding the death of either party between the verdict and the judgment. Then by Reg. Gen., Hil. Term, 4 Wm. 4, pt. II., r. 3, it was ordered "all judgments, whether interlocutory or final, shall be entered of record of the day of the month and year, whether in Term or Vacation, when signed, and shall not have relation to any other day. Provided, that it shall be competent for the Court or a Judge to order a judgment to be entered nunc pro tunc." The rule of Court did not extend the rights of the parties beyond what they were under the statute, and the Court never exercised its power to direct judgment to be entered nunc pro tunc, except where the delay was caused by the act of the Court. This was expressly held in the case of Vaughan v. Wilson (a). In the present case, it could not be said that the delay arose from the act of the Court, as the defendants might, while the discussion was proceeding in settling the bill of exceptions, have signed judgment. [Wilde, C. J.-The record remains in the hands of the associate until the bill of exceptions is settled. During that time there would be a difficulty in signing judgment.] But the defendants got possession of the postea on the 3rd of June, and consequently there could be no necessity for waiting until Michaelmas Term after the death of Robertson on the 28th of October, before any attempt was made to sign judgment. It was in the defendant's power to sign judgment immediately after the postea was obtained from the associate. As, therefore, the delay

✓ (a) 4 Bing. N. C. 116; S. C. 5 Scott, 404.

VOL. IV.

UU

D. & L.

1847.

FISHMONGERS'
COMPANY

v.

ROBERTSON and Others.

which had occurred in signing judgment was not caused by the Court, there was no ground for granting the present application.

Murphy, Serjt., and G. L. Browne, in support of the rule. The facts of the case shewed that there was no default on the part of the defendant in not signing judgment sooner, and, therefore, he ought to be in the same situation now as if judgment had been signed within two Terms after the jury found their verdict. [Williams, J.— Does the 17 Car. 2 apply to several defendants?] It had not been decided that it did not, and it should be construed so as to apply to them. Then if they could sign judgment, their representatives might. There ought to be no distinction on the point. In Mara v. Quin (a), on an application similar to the present, Grose, J., laid down the principle that the Court would interfere where justice was required, by directing judgment to be entered nunc pro tunc. So in Copley v. Day (b), on an application to enter up judgment nunc pro tunc, although the application was refused, the Court intimated a strong wish to make the rule absolute if a precedent could be found, in order to prevent injustice accruing. Now here, if this rule were discharged, considerable injustice would be done, as the delay had been caused by the continued negotiation of the parties.

WILDE, C. J.-This motion is not presented to the Court on very distinct grounds. But it seems that the parties were in a state of negotiation as to preparing the bill of exceptions, and the defendant died before the judgment was entered, and it is now sought to have it entered nunc pro tunc. In the course of my experience I never knew a case where judgment has been entered nunc pro tunc, except where the necessity for the application had

(a) 6 T. R. 1.

(b) 4 Taunt. 702.

1847.

FISHMONGERS'
COMPANY

υ.

and Others.

been caused by the delay of the Court; and the motion has always been based upon the ground, that the delay was that of the Court. It may be, that if there has been some bad faith in the conduct of one of the parties, that might ROBERTSON possibly be considered as a ground for the Court's interference. But in the present case no such ground exists. The question is, whether the Court shall direct a judgment to be entered up of a day antecedent to the death of one of the parties. Now, by the general rule, the postea is not delivered out until the bill of exceptions is sealed; but the party who obtains the verdict is at liberty to sign judgment, whether the bill of exceptions is sealed or not. But it is not the practice to do so without an order of a Judge of the Court. When the postea is complete, it is the practice for the successful party to sign judgment. Now here it appears that the judgment might have been signed during the lifetime of the defendant, Robertson, as he obtained the postea on the 3rd of June, and he did not die until the 28th of October following. He might at any time therefore, between those two dates, have signed judgment. The reason given for the delay is, that there was a discussion proceeding between them as to the form of the judgment. But the plaintiff, by entertaining that discussion, did not thereby prevent the defendant from signing his judgment. that the plaintiff has consented to the delay. But has he given up any right resulting from a death in the meantime? That did not waive any right that he had, or give any advantage to the defendant. If that was intended, some stipulation should have been made upon that point. No bad faith is suggested as existing on the part of the plaintiff. The only ground stated for this application is, that there has been a negotiation between the parties down to the 28th of October. There is no case which authorizes such an interference, nor does it come within any principle that I can discover. It would be very inconvenient if we were to enter into discussions of this description, when the parties

Then it is said

1847. have ample means to protect themselves by arrangement or

FISHMONGERS'
COMPANY

v.

ROBERTSON

and Others.

stipulation.

MAULE, J., CRESSWELL, J., and WILLIAMS, J., concurred.

Rule discharged.

JC. 3. Ch. 957.

WILLIAMS v. CROSSLING.

COWLING shewed cause against a rule obtained by Hugh Hill, calling on the plaintiff to shew cause why an order of Maule, J., should not be amended, by requiring the plaintiff, who was defendant in an interpleader issue, to give security for costs. The plaintiff obtained judgment in the above cause, and afterwards sued out a fi. fa. The sheriff seized the defendant's goods in November, 1846. While the sheriff was in possession, a fiat in bankruptcy was issued on the 17th of November against the defendant. The assignees gave notice to the sheriff of their claim to the goods on the 4th of December. That officer applied under the Interpleader Act, 1 & 2 Wm. 4, c. 58, s. 6, and the 1 & 2 Vict. c. 45, s. 2, to a Judge at Chambers, and an order was made by Maule, J., on the 12th of December, that the sheriff should withdraw, the assignees take the goods, and on payment of 500% into Court, that being the sum for which execution had issued, an issue should be tried between the assignees and the plaintiff. It appeared that Williams, the plaintiff, was resident in Scotland, and an application was made that although he was defendant in the issue, he should, under the circumstances, give security for costs. The learned Judge, however, declined to make that addition to his order, and the present application was accordingly made. By means of the learned Judge's order, he who was the plaintiff in the original action had become defendant in

the issue, and must, therefore, be in the same situation as
any other defendant. Now a defendant could not be com-
pelled to give security for costs. In the case of Benazech v.
Bessett (a), it was held, that if a party is made a defendant
in an interpleader issue, he is entitled to obtain security for
costs from the plaintiff who resides beyond the jurisdiction
of the Court. It would seem from that case, that where a
person became a party to an issue under the Interpleader
Act, he was to have the same rights as a party in any other
cause. It would be a considerable hardship on the de-
fendant in the issue, if he was compelled to give the
security required, as the order of the learned Judge had
already deprived him of considerable advantage. He was
the plaintiff in the original suit, and had seized the goods
of the defendant in execution. The assignees, however,
by their interference, had deprived him of the fruits of his
judgment, and they moreover now sought to compel him to
give them security for costs. [Maule, J.-If the sheriff,
instead of pursuing the course he has adopted, had returned
nulla bona, and the plaintiff had sued him for a false
return, the former must have given security for costs.
is, consequently, in no worse a situation than he would
have been in under those circumstances.] But the appli-
cation was premature, because all questions as to costs were
always reserved for the consideration of the Court, after
the issue had been disposed of. [Cresswell, J.-The plain-
tiff was bound to come to the Court before the costs were
incurred.]

He

Hugh Hill, in support of the rule. The question was, whether it was fair and reasonable that security for costs should be given. In the ordinary course, if no interpleader rule had been obtained, the assignees would have brought their action against the sheriff, who would have been a responsible

(a) Ante, vol. 2, p. 801.

1847.

WILLIAMS

v.

CROSSLING.