1834. DIXON v. ENSELL. THIS was a motion by the sheriff under the Interpleader The sheriff, in Act. Platt for the assignees, and Hayes for the execution creditor, contended that the application was out of time. The rule was dated April 16th, and the execution was so far back as the 12th of June; a claim under a bill of sale was made on July the 25th; and on September the 17th there was notice of a fiat in bankruptcy against defendant. They cited Devereux v. Johns (a), and particularly Cook v. Allen (b), where the Court held that the sheriff must come promptly. the Jeremy for the sheriff. The motion was originally made applying for relief under the Interpleader Act, should come promptly, but a late application will, under spe cial circumstances, be al lowed. Where there was great delay on the part of the sheriff in applying to the Court, in conse quence of nego tiations between the parties, and the execution creditor after wards abandon ed his claims, the Court re fused to make the latter pay on the 22nd of January, but the affidavits were then ordered by the Court to be amended for the purpose of denying collusion (c). Previously to that, a long corre- costs. spondence had been going on between the parties, particularly during Michaelmas Term. The Court (d) held, that, under the special circumstances of the case, the application was not too late. The execution creditor having afterwards abandoned his claim, the Court ordered each party to pay his own. costs. (a) Ante, Vol. 1, p. 548. (b) Ante, Vol. 2, p. 11. (c) But in the cases of Doniger v. Hinxman, ante, p. 424, and Dobbins v. Green, ante, p. 427, note (b), in the King's Bench Practice Court, it was held that it is not (d) Parke, Bolland, Alderson, 1834. A plaintiff can not be required TAYLOR V. FRASER. SANDFORD shewed cause against a rule which had to give security been obtained by Hance, calling on the plaintiff to give for costs unless it appears that he is gone abroad for more than a mere temporary ab sence. security for costs, upon the usual affidavit of his being out of the country. From the affidavits in answer it appeared that the plaintiff was a West-India merchant, and that he had a domicile here; that he was at present in Southern Australia, and was only gone abroad for a temporary purpose, and was expected to return shortly. He cited Tullock v. Crowley (a), Anonymous (b), and Cole v. Beal (c). VAUGHAN, B.-This is not a case to which the rule requiring security for costs applies. The other Barons concurred. Rule discharged, with costs. In another case (d), Byles moved for security for costs, on an affidavit that the plaintiff was gone to Sierra Leone, and had been out there for three months past. GURNEY, B.-That is not sufficient. You must shew that he is not gone for a mere temporary purpose. Rule refused. (a) 1 Taunt. 18. (b) 2 Chit. 152. (c) 7 Moore, 613. (d) Boustead v. Scott, Exch. E. T. 1834. 1834. KNOWLES, Executrix, v. LYNCH. certiorari under the 19 Geo. 3, c. 70, s. 4, is absolute in the COMYN moved, upon the statute 19 Geo. 3, c. 70, The rule for a s. 4 (a), for a certiorari. Final judgment had been obtained in an inferior Court of record for upwards of 201.; and it was sworn that diligent search and inquiry had been made for the person and effects of the defendant within the jurisdiction of that Court, under the execution which had issued, but that neither could be found. first instance, and applies to an all cases where the defendant removes himself and his effects out of the infe It was doubted whether it was a rule nisi only or abso- rior jurisdiction. lute in the first instance, and whether (the debt being above the sum stated in the preamble) the act applied. On a subsequent day, the practice having been inquired into— Lord LYNDHURST, C. B., granted a rule absolute in the first instance, saying, he thought it was within the act, and that the enacting part went beyond the preamble. (a) By which, after reciting that persons served with process issuing out of inferior Courts, where the debt is under 10., (the 7 & 8 Geo. 4, c. 71, s. 6, extended the sum to 20.), may, in order to avoid execution, remove their persons and effects beyond the limits of the jurisdiction of such Courts, it is enacted, "that in all cases where final judgment shall be obtained, in any action or suit, in any inferior Court of record, it shall and may be lawful to and for any of his Majesty's Courts of record at Westminster, upon affidavit made and filed of such judgment being Rule absolute. obtained, and of diligent search 1834. Where, in con sequence of the death of the Marshal of the King's Bench was no one at the HARRIS v. DAVIES. R. V. RICHARDS applied to the Court respecting the defendant, for charging whom in execution he had before obtained a rule; he stated, that, in consequence of the death of the Marshal of the King's Bench Prison, no one at the prison would receive the defendant. ALDERSON, B.-You must have more time, by leave of the Court. A proposal to refer, made af sion day, held not to warrant EATON V. SHUCKBURGH, Bart. HILL shewed cause against a rule obtained by Hum ter the commis- frey for the costs of the day for not proceeding to trial, on the ground that there had been a proposal made to refer, which was the cause of the plaintiff's not proceeding; but it appearing that the proposal was not made till after the commission day the plaintiff in not proceeding to trial, and that he was liable to pay the costs of the day. The Court said that it was then too late; and they made the rule absolute. Rule absolute. A cause (in which money had been paid DAWSON V. Garrett. ARCHBOLD shewed cause against a rule calling on the plaintiff to shew cause why an attachment should not into Court) was issue against him for not paying costs pursuant to the referred, with all matters in difference, the costs to abide Master's allocatur. the event. The arbitrators found that the plaintiff had no cause of action, but that there was a sum of 10%. due from the defendant for money lent to his wife, which was paid into Court:-Held, that the plaintiff was liable to pay the costs. The award, which set out a rule of Court, from which it appeared that the action was brought to recover a sum of money, and that 107. had been paid into Court, and that the parties had consented to refer the action and all matters in difference, and that the costs of the action and the costs of the award were to abide the event of the award, was in these terms: "I do award, that the plaintiff, at the time of the commencement of the action, had no cause of action save and except 107. lent by him to Hannah, the wife of the defendant, when sole, and that I find has been brought into Court." The award was treated as being in favour of the defendant, and the Master taxed the costs for him. It was now contended, that all matters in difference having been referred, the whole matter was opened, and the arbitrator had full power over the 10%. paid into Court. Malcolm v. Fullarton (a). That the money was paid into Court on payment of the costs of the action up to that time, which admitted that there was once a cause of action; and upon the other matters in difference a sum of 10%. was found to be due to the plaintiff. The award, therefore, was in favour of the plaintiff, and the defendant ought to pay the costs. Secondly, it was argued that there were no words in the award requiring the plaintiff to pay any thing. PARKE, B.-The award is founded on the rule which directs the costs to abide the event. That is against you, for the award is clearly in favour of the defendant. The 107. paid into Court were in effect struck out of the declaration, and, therefore, were no longer a matter in difference. In Malcolm v. Fullarton, no money was paid into Court. ALDERSON and BOLLAND, BS., concurred. 1834. DAWSON V. GARRETT. Rule absolute. (a) 2 T. R. 645. |