1851 SHATTOCK บ. CARDEN. wit, of the value of 1581. 8s. 6d., besides poundage &c., and then levied the same thereout.-Breach, that the defendants had not the money so levied in Court according to the exigency of the writ, nor did the defendants pay over such monies to the plaintiff, but falsely returned that L Harrison had not any goods or chattels in the bailiwick of the said sheriff, whereof they the defendants could cause to be levied the debt and costs aforesaid, or any part thereof &c. Pleas, first, not guilty. Secondly, that the defendants did not, under or by virtue of the writ of fieri facias, as sheriff of the county of Middlesex, levy the monies indorsed on the writ, to wit &c., directed to be levied as therein alleged, or any part thereof, out of the goods and chattels of L. Harrison, modo et formâ, concluding to the country; upon which issues were joined (a). At the trial, before Parke, B., at the Middlesex Sittings in the present Term, it appeared that, after the defendants had seized the goods of Harrison under the plaintiff's execution, another writ of fieri facias, tested subsequently to the plaintiff's and issued on a judgment recovered by "The British Bank" against Harrison, was delivered to the defendants, under which they seized and sold the goods of Harrison, and paid over the proceeds to The British Bank on receiving an indemnity. The defendants' counsel proposed to shew that the plaintiff's judgment was obtained by fraud and collusion between him and Harrison, in order to protect the goods of the latter and defeat his other creditors. It was objected on the part of the plaintiff, that this evidence was not admissible under the above pleas. The learned Judge, however, on the authority of Wintle v. Freeman (b), admitted the evidence, and a verdict was (a) There were also two special pleas, to the effect that the judgment of the plaintiff had been obtained by fraud and collusion; found for the defendants, leave being reserved to the plaintiff to move to enter a verdict for him. Humfrey moved accordingly (June 11).—The evidence was improperly received. In Wintle v. Freeman (a), which is relied upon by the defendants, the proceeds of the goods seized by the sheriff were exhausted by payment of a year's rent to the landlord, the expenses, and the amount due on another writ of fieri facias previously delivered to the sheriff, and it was held, that nulla bona was a proper return; and that in an action for a false return the sheriff might shew the above facts under a plea that the execution debtor had no goods whereon the sheriff could levy. But the question raised by that plea was, whether the entire proceeds of the execution had been exhausted by virtue of some legal authority in the sheriff to appropriate them, so that, in point of fact, there never were any goods applicable to the plaintiff's execution. [Parke, B.-So here, there were no goods applicable to the plaintiff's claim, because it was concocted in fraud. According to the authority of Imray v. Magnay (b) and Christopherson v. Burton (c), fraud is clearly a good defence, and there seems no reason why the sheriff may not, under a plea denying the levy, shew that the money levied was not applicable to the plaintiff's writ. In Drewe v. Lainson (d) it was held, that the words "then levied the same thereout" meant that the sheriffs had in their hands proceeds available to satisfy the plaintiff's writ.] In that case the writ, which defeated the plaintiff's execution, was prior in date to the plaintiff's writ, whereas, in the present case, the writ of The British Bank bears date subsequently to the plaintiff's. Moreover, there the validity of the plaintiff's writ was admitted, the defence being, that the proceeds of the levy were applied in satisfaction of the prior writ; here it is sought to invali 1851. SHATTOCK v. CARDEN. 1851. SHATTOCK V. CARDEN. date the plaintiff's writ by proving fraud, which, according to the decision in Wright v. Lainson (a), should have been specially pleaded. At all events, the defendants should have pleaded, as was done in Wentle v. Freeman, that the execution debtor had no goods whereon the sheriff could levy in satisfaction of the plaintiff's writ. It having been intimated to the Court that the record contained special pleas of fraud which were demurred to, they postponed their decision, in order that the demurrers might be first argued. ment. Cur. adv. vult. POLLOCK, C. B., now said.-In this case a verdict was found for the defendants, and we reserved the question, whether we should grant a rule, in order that the plaintiff might have the opportunity of arguing the demurrer to the defendants' pleas. But as no argument has yet taken place, we think that we ought now to deliver our judgWe are all of opinion that there ought to be no rule, as we consider the case in reality governed by that of Drewe v. Lainson (b), cited by my brother Parke in the course of the argument. There the declaration by an execution creditor against the sheriff for falsely returning nulla bona to a fieri facias, alleged that the sheriff seized goods of great value, to wit, of the value of monies included in plaintiff's writ, and then levied the same thereout. The defendants pleaded, that F. had sued out a prior writ of fieri facias, which was delivered to the sheriff before the plaintiff's writ, and remained unexecuted in the sheriff's hands, and the sheriff, after seizing the goods under the plaintiff's writ, and before they were sold under the same, seized them under F.'s writ, and sold them for the utmost price, &c., but for a sum insufficient to pay the sum indorsed on F.'s writ, and paid the sum to F.; and that plea was held bad on spe (a) 2 M. & W.739. (b) 11 A. & E. 529. cial demurrer as an argumentative traverse of the allegation, that the sheriff had levied the monies indorsed on plaintiff's writ, such levy consisting of a sale, the proceeds of which would be applicable to plaintiff's writ. The Court took time to consider the question, and delivered an elaborate judgment, which concluded as follows:-"Upon the argument, and since, we doubted whether they might not ascribe to the allegation the meaning secondly or at any rate thirdly above stated. On further consideration, we are of opinion that the words 'then levied the same thereout,' necessarily mean more than a seizure under the plaintiff's writ and a sale of some sort. They mean, also, that the defendants had in their hands the proceeds of the sale for the purpose of handing over to the plaintiff; otherwise the plaintiff does not shew any right upon the face of the declaration. It is necessary to give the words this sense, in order to cast a duty on the defendants, the breach of which is the not paying over the money; for unless they had the money for that purpose, no breach of duty is shewn. The defendants, therefore, were bound to ascribe to the words the meaning first above mentioned, and ought to have traversed them." That, in our opinion, lays down the law correctly, and governs the present case. The learned counsel on moving the rule attempted to draw a distinction between that case and the present, on the ground that there the writ preferred to the plaintiff's was prior in date to his, whereas in the present case it was of a date subsequent to the plaintiff's. We think, however, that the defence, that the plaintiff's writ was void as having been obtained by fraud, is equally open to the defendant in either case, and that the return of nulla bona means, no goods to satisfy the plaintiff's claim. Rule refused. 1851. SHATTOCK V. CARDEN. 1851. June 5. the owners of two years in a certain house and premises, let them to one G. for twen ty-one years, under the usual covenants, to pay the rent and to keep the premises in re pair; and, after wards, they assigned the reversion to G. B. J. G. had previously assigned the residue SMITH V. HOWELL. B. & P., being COVENANT.—The declaration stated, that Messrs. an unexpired Broughton & Preston, being possessed of the residue of term of seventy- a term of seventy-two years in a certain leasehold estate, premises, and dwelling-house at Fulham, by indenture, in the year 1836, demised the same to one John Goodered for the term of twenty-one years, at the clear yearly rent of 1267., payable quarterly; and that Goodered did thereby covenant to keep the premises in repair during the term; that, on the 8th of August, 1838, Messrs. Broughton & Preston assigned by deed the reversion in the premises to one George Bridge; that afterwards, on the 7th of September, 1839, Goodered by deed assigned the premises demised to the plaintiff; and the plaintiff "did thereby, for himself, his heirs, executors, and administrators, covenant with the said John Goodered, his executors and administrators, that he the plaintiff, his executors, administrators, or assigns would, from time to time, faithfully perform and observe the lessee's covenants contained in the said indenture of lease, and would at all times thereafter effectually indemnify and save harmless the said John Goodered, his heirs, executors, and administrators, from all losses, damages, and expenses in respect thereof;" that, by an indenture of the 21st of April, 1841, the plaintiff assigned the premises to the defendant, and the defendant thereby covenanted that he would, during the remainder of the term, pay the rent of his term of twenty-one years to the plaintiff, with the usual covenants. The plaintiff afterwards assigned the term to the defendant, with similar covenants, to pay the rent and to keep the premises in re pair, and with a covenant that the defendant would observe and fulfil all the covenants of the former lease; and that he would, from time to time and at all times, save harmless and indemnify the plaintiff from all costs, damages, and expenses, which might be incurred by reason of any delay, breach, or default in payment or performance thereof. On the rent becoming due and unpaid, and the premises falling out of repair, G. B. brought an action against J. G., who suffered judgment by default. J. G. afterwards brought an action to recover the amount so paid by him, and his costs. The plaintiff defended the action unsuccessfully, and he became liable to pay to J. G. the amount of the judgment by default, and also of the costs of that action. The plaintiff then sued the defendant, not having paid that amount to J. G., and judgment not having been signed in the action against him:-Held, that the plaintiff was entitled to recover from the defendant the amount of the rent and repairs, and the costs of the action in which J. G. had suffered judgment by default, but that he was not entitled to the costs of the action brought against him by J. G. |