c. 74, took these appointments from the Registrars and gave it to the Lord Chancellor; the 11th sec. states what the staff of the office should consist of after the passing of the act, viz., two Registrars, one Assistant Registrar, and six clerks, and legis. lates for three distinct periods of time. First, till the existing clerks were reduced to six; secondly, from that time till the Lord Chancellor had appointed a new succession of clerks; thirdly, from the time of the removal of all the then existing clerks, or the completion of the new succession; and then proceeds to enact that the present Registrars shall continue such, that the future Registrars shall be appointed from the office of the Assistant Registrar, and this applies to all times. It then appoints by name to the new offices, and goes on to provide for the future, that is, after the new succession of clerks had been appointed by the Lord Chancellor. Robert Long was then Assistant Registrar; the vacancy caused by his promotion, or removal, was to be filled by the chief clerk, there was no officer antecedently known by that name, and the act does not provide for the appointment of any person after the death of O'Keeffe, the then first clerk; it provides for the appointment of the then first or chief clerk, being as much a direction that the vacancy should be filled by O'Keeffe, the only person known as chief clerk, as if it named him. It is not enacted that the next in order should take the office in the event of O'Keeffe being considered objectionable, but that that the Chancellor should appoint a fit and proper person, no succession was then intended to take place till, the third period had happened; and when it was the intention of the legislature that a succession should take place, it is enacted that the vacancy shall be filled by the clerk next in seniority; if it was intended to introduce a succession among these clerks, it would have been done at an earlier part of the section. The 11th section contains no provision for appointment by the Chancellor, or a succession after promotion in the office till the third period had arrived. This, I think, is a casus omissus. The act has rendered it impossible that there should be an appointment of a chief clerk after the death of O'Keeffe, till the third period had arrived. The words are-" And as vacancies may occur in the offices of the present clerks, or assistant clerks, such vacancies shall not be filled up until the whole number shall be reduced to six; and upon a vacancy happening after the number shall be reduced to six, the Lord Chancellor shall appoint some proper person to fill the office, and so from time to time, until the whole of the present clerks shall be removed." By the first part of this clause, the Chancellor was prohibited from ap. pointing till the number of clerks was reduced to six, and then he was to appoint a proper person to fill the vacancies as they should occur, and so from time to time, till the whole of the existing clerks were removed. The defendant in error claims this office as chief clerk. It appears to me, that except the rule of succession by seniority can be applied during the first period, he has no right. If that be so, the appointment is either in the crown or the Chancellor. The question, then, is, has the

plaintiff in error shewn a title on the record? His right depends on this, that where a new office is created, the appointment resides in the crown, the prima facie source of all appointments. We have no intimation of any reservation in the crown, and it is manifest that it was for the interest both of the crown and the public to give the appointment to the Lord Chancellor. I am of opinion that, being the head of the office, the Lord Chancellor was to have the appointment. Whether the claim is by succession or appointment, the Chancellor was to have the approval; and it was the obvious policy of the act to give the appointment to the head of the Court. In the 2nd section, the crown reserves to itself the right of appointing a fit person to be Clerk of the Crown and Hanaper, and in the 17th section gives the appointment of additional clerks to the Lord Chancellor, manifestly shewing an intention to make a due selection. Much confusion has arisen from the use of the terms “first clerk,” and "chief clerk." I do not know whether these terms were intended to be synonymous; there is a distinction taken in the schedules; in the first, Mr. O'Keeffe is denominated "chief clerk," the others "clerks," not first clerk, second clerk, &c., and in the second schedule, their designation is changed to that of first, second, and third clerks, The contribution provided by the 27th section for Mr. Daly, who had been chief clerk, is curious; Y. O'Keeffe, the then chief clerk, was to pay him £200 per annum, and the two Registrars £100 each; and in case of the death of any of these persons, the successor in that office was to continue to pay the allowance during the life of Daly. If the defendant in error was never chief clerk, who was to pay Mr. Daly's allowance, and if he was intended to be first clerk, and to pay this allowance, it is to me inexplicable how he could be intended to have during Daly's life but £200, and his inferior £300. It is not, however necessary to solve these difficulties. I am of opinion the act contains no provision depriving the Lord Chancellor of the appointment, it is in him still, and resides in him as the head of the court. I am, therefore, of opinion that the judgment of the court below must be reversed.

LEFROY, B.-The question as to the right of the plaintiff to the office of Assistant Registrar to the Court of Chancery, depends entirely on the construction to be given to the 11th section of the 6 & 7 Wm. 4, c. 74. Three constructions have been proposed, under one of which either party is entitled to the office. The relator contends that, by the construction of this act, he has a good title. The plaintiff here-the defendant below-says, he has a title, either by the appointment of the Lord Chancellor, under the act, or, if the act has not provided for the appointment of a person to hold pro interim; that is, from the time the then existing clerks were reduced to six until the new succession was complete. In that case, a lapse of appointment by the crown having taken place, the Chancellor was entitled to appoint. These propositions unfold every view of the question arising on this act. To consider them in their orderfirst, it is said, Mr. Kelly, as clerk, was named to

continue in the office; his right to hold it was subject to the approbation of the Lord Chancellor, of which there has been no expression. Mr. Kelly claims, under the statute, in three capacities; first, as chief clerk; secondly, as senior clerk by succession; and, thirdly, by necessity. Was he ever chief clerk, either in name or qualification, at the time of the passing of the 6 & 7 Wm. 4, c. 74? I think not; he had not the qualification it was intended the persons to fill this office should have. The 4 Geo. 4, cap. 61, sec. 42, enacts, "that the Registrars may appoint a first clerk, to be approved of by the Lord Chancellor of Ireland, and to be removable by the Registrars, with the consent of such Lord Chancellor; and the said Registrars shall, and they are hereby required, out of such fees, to pay to the said first clerk a clear yearly salary of not less than £500; and the said Registrars shall also, out of the said fees, pay all salaries and allowances to all inferior clerks in the said office of Registrar." The person appointed under that section was to be a person appointed with the consent of the Lord Chancellor, and removable only with his concurrence; the legislature thus placing a guard round his appointment, both of consent and concurrence. The Registrars were also to appoint all scrivenary clerks; to these no fixed salary was given, there was no qualification required as a test of their fitness, they were merely the inferior clerks, for the appointment of whom the approbation of the Lord Chancellor was unnecessary. At the time of the passing of the 6 & 7 Wm. 4, c. 74, the test of qualification was the approval of the Lord Chancellor. The 11th section enacts, "that the establishment of the Registrars' office shall consist of two Registrars, one Assistant Registrar, and six clerks, and as many scrivenary clerks as the service of the said office shall require, and as shall be approved of by the Lord Chancellor." It then goes on to enact who shall be the Registrars, the Assistant Registrar, and that John Kelly, with others, "shall be continued as such clerks." What was the position of John Kelly then? O'Keeffe was the chief clerk; Kelly, a mere scrivenary clerk, continued with all the infirmities of his original appointment, without any approbation of the Chancellor, brought in merely at the will of the Registrars. The section then goes on to provide for the filling these offices in future. What is the principle to be acted on in these appointments? There is to be a succession, but with the qualification that the appointment was to take place by, and with the approval of the Lord Chancellor, after the whole number of clerks had been reduced to six. Secondly, as to Mr. Kelly's claim by right of succession. The senior clerk was to be the person who was so, after the removal of all the then existing officers, and should have the approbation of the Lord Chancellor even to entitle him to his right by succession. There was to be no succession till the whole of the present clerks were removed and others appointed by the Lord Chancellor. How can Mr. Kelly, consistently with this right of approbation, claim this office by succession? He was to continue as he was; no doubt, he was to have a fixed salary that will not supply the qualification re

quired, there is nothing in the act to shew that a different policy was to be followed in the interim until the new succession of clerks had come. Mr. O'Keeffe did not gain his office by succession, but as chief clerk, having been first clerk under the 4 Geo. 4, c. 61, and with all the qualifications required by the legislature. Suppose the Lord Chancellor had objected to Mr. O'Keeffe, and passed him by, Mr. Kelly could have had no title by seniority, Mr. O'Keeffe being still chief clerk; and it was impossible to set up a title by succession, until in the words of the act, "the whole of the present clerks shall be removed." Lastly, can Mr. Kelly claim through the title of necessity? It appears to me that this was provided for, the words of the section "in case the Lord Chancellor shall not consider the chief clerk qualified, then the Lord Chancellor shall, until after mentioned, appoint some proper person to be Assistant Registrar," if fairly construed, enabled the Chancellor to appoint a proper person till the new succession had arrived. It is argued that the passage in the section, "that upon a vacancy happening in the office of Assistant Registrar," &c., should be read, "that upon any vacancy," &c. I will read it so; there is nothing extravagant in reading the passage thusthat the chief clerk was to be appointed if there was no objection to him; if there was, then, that the Lord Chancellor should appoint a proper person, from time to time, until the whole of the present clerks were removed, the words until after mentioned being intended to apply to the appointments to be made from time to time. And this mode of interpretation is borne out by authority. In Stradling v. Morgan (Plowden, 205), it is said, "From which case it appears that the sages of the law heretofore have construed statutes quite contrary to the letter, in some appearance; and those statutes that comprehend all things in the letter, they have expounded to extend but to some things; and those which generally prohibit all people from doing such an act, they have interpreted to permit some people to do it; and those which include every person in the letter, they have adjudged to extend but to some persons only; which expositions have always been founded on the intent of the legislature, which they have collected, sometimes by considering the cause and necessity of making the act, sometimes by comparing one part of the act with another, and sometimes by foreign circumstances; so they have ever been guided by the intent of the legislature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and good discretion." And in Arthur v. Bokenham (11 Mod. 161), Trevor, C. J., says, "Therefore, in doubtful cases, we may enlarge the construction of acts of Parliament, according to the reason and sense of the law makers expressed in other parts of the act, or guessed by considering the design and frame of the whole." And the same rule, as to construction of statutes according to the intent, will be found in the King v. the Poor Law Commissioners (6 Ad. & El. 7), per Coleridge, J., and in Stracey v. Nelson (12 M. & W. 585) per Parke, B., p. 544. Parke, B., p. 544. The court is not to be tied

down by words, which, if given effect to, would violate the general policy of the act. The next question is as to the supposed casus omissus. I cannot think the legislature left a certain period unprovided for; it is, in my mind, more difficult to attain a construction by expunging words than by reading them without much violence in a different sense; and that we should not come to the conclusion, there is a casus omissus, which the legislature abhors as much as nature does a vacuum without a satisfactory reason. On these grounds, I am opinion that the judgment of the court below should be reversed.

BALL, J.-I also am of opinion that the judgment of the court below should be reversed. On the face of the record, Mr. Kelly relies on this, to deprive the plaintiff here of his office, "that the defendant, on the promotion of O'Keeffe, was, and still is, the chief and senior clerk," and that, as such, he has a title by devolution of office, and that the defendant cannot be appointed by the Chancellor or any other person. With respect to his claim as chief clerk, the 4 Geo. 4, c. 61, s. 42, created the office of first clerk; the first schedule to the 6 & 7 Wm. 4, c. 74, describes it as that of chief clerk, meaning no more than a description of the office of first clerk, held by O'Keeffe. The first schedule of the 6 & 7 Wm. 4, c. 74, names certain persons in succession, as clerks, with salaries-O'Keeffe, £500 per annum ; Mr. Kelly, £300; Mr. Young, £130, &c. Mr. Kelly is, undoubtedly, the first of the future clerks; but has the act made the office of chief clerk a continuing office? I think not. The £500 per annum was to be paid to O'Keeffe alone. It is difficult to hold, that it was intended that Kelly should pay out of his £300 per annum the £200 Mr. O'Keeffe was bound to pay Daly during his life. It was next argued, that the office should not be permitted to cease. I agree with my brother Jackson that, in this respect, there is a casus omissus; but I think the Chancellor has the right of appointment under the statute, and that if even the crown had a right, this being a new office, and there being no reservation of the rights of the crown, it appears to me, that, on the general rule of law, the Chancellor should have the appoint

ment.

RICHARDS, B.-This question wholly depends on the construction of the statute 6 & 7 Wm. 4, c. 74. I am of opinion that the right of appointment is in the Chancellor, and has been properly exercised by him. To arrive at this conclusion, two questions are to be considered; first, on the construction of the statute, was Kelly entitled ? At the time the act was passed, O'Keeffe held a peculiar position; he was appointed with the concurrence and approbation of the Lord Chancellor, and it is impossible to contend that this high office was to be continued to any other person. The title given him was given to no other officer. It is important to observe, with reference to the new succession of clerks, that they were to be the appointees of the Chancellor, and that at each step they were to go through the ordeal of further approbation. The vacancy was not to be filled by the senior clerk until after the whole of the then existing clerks had passed away,

and a new succession come; and the reason is, the legislature did not wish the persons then holding office to be removed; but it is not to be supposed that the legislature would have acted in this cautious manner if it had intended these persons to be eligible to this important office. The next question is, did the appointment vest in the Chancellor? It is certain the legislature intended the Chancellor to have the appointment in some cases, though the new succession had not arrived. It is said, that if O'Keeffe died he would have no such right of appointment; such a construction would stultify the legislature. I would read the act thus: that the chief clerk (plainly meaning O'Keeffe) was to be appointed, if there was no objection to him; if there was, in that case, the Lord Chancellor was to appoint a fit and proper person to be Assistant Registrar; the words "in that case" meaning in case of any vacancy occurring the Chancellor was to appoint a fit and proper person; and the word if, "and in that case if," I would read as "provided;" the clause would then read, and in that case—that is, of a vacancy occurring-O'Keeffe was to be appointed, provided the Lord Chancellor shall consider him to be qualified, if not then he was to appoint a fit and proper person, and it is impossible to contend that Kelly could take the office, discharged of that qualification of approbation by the Lord Chancellor, and that the exceptions were to cease in his favour. That the intention of the legislature is best expounded by another part of the act, is a rule of law fully recognised in the King v. Poor Law Commissioners, (6 Ad. & El. 7). On these grounds, I am of opinion the judgment of the court below should be reversed.

PERRIN, J.-The 4 Geo. 4, c. 61, created several ministerial offices; the 13th section provides for the appointment of "writing clerks ;" and the 7th section provides a form of oath to be taken by officers and clerks of the Court of Chancery. These sections shew the relation that existed between the clerks in office and the writing clerks. The 42nd section provides for the appointment of a first clerk by the Registrars, with the approbation of the Lord Chancellor, and who was also removable by them with the Chancellor's consent. The Registrars were to pay the chief clerk £500 per annum, and all salaries and allowances to inferior clerks. The first clerk, or the Registrars, were to receive the fees of the office; the first clerk was thus quite distinguishable from the other or inferior clerks. It appears from a subsequent part of the act (section 27), that a person named John Daly who filled the office of chief clerk, being unable to perform the duties, that Yelverton O'Keeffe was appointed first clerk, with the approbation of the Lord Chancellor. Suppose that before the passing of the 6 & 8 Wm. 4, c. 61, that O'Keeffe was either promoted, or had died, or resigned, would the next in order be entitled to the office of first clerk? From the mode of appointment, the inferior clerk could not have succeeded. The great want of accuracy in the 11th section of 6 & 7 Wm. 4. c. 74, has rendered it difficult of construction, but it is clear that no appointment could be made but by the head of the office. Under the 4 Geo. 4, c. 61,

there was no right of succession; under the 6 & 7 Wm. 4, c. 74, none of the vacant clerkships were to be filled till the then number of eight was reduced to six, that is a positive enactment that there was to be no succession then. After the reduction to the number of six, the vacancies could only be filled by the appointment of the Chancellor, and so on, till a new succession had arrived; though, in one sense, Kelly, being at the head of the existing clerks, the first in order, and with a higher salary might be considered as chief clerk to answer the description in the 11th section, on consideration, I am not satisfied that he answers the description therein of chief clerk, he was not appointed with the approbation of the Lord Chancellor, nor was he entrusted with the responsible duties of the first clerk. It is not enough that Kelly is disqualified, it is a further question is Sugden entitled to the office, or, in other words, had the Chancellor the right of appointment; the words of the act are"that the chief clerk is to fill the office, if there be no sufficient objection," if the Lord Chancellor be not satisfied that he was free from objection, he was to appoint a fit and proper person, but there is nothing to shew that the chief clerk only was to be appointed. We are not to suppose a cassus omissus, if it be possible to avoid it. This statute, and the 4 Geo. 4, manifest an intention to enable the Chancellor to appoint; this is, I think, a strong argument to shew that such was to be the case in future. I am therefore of opinion the judgment of the court below must be reversed. CRAMPTON, J.-I still retain the opinion I entertained in the court below. I think the judgment in the Queen's Bench was right; that Sugden has shewn no right to the office under the statute, and that Kelly is in by succession.

TORRENS, J.-I have arrived at the same conclusion as my learned brethren who have preceded me, and upon the same grounds. I think a satisfactory conclusion can be arrived at, by considering the state of the court before the passing of the 6 & 7 W. 4, c. 74. Under the provisions of the previous act, the first clerk, before he could receive his appointment, required the approbation of the Lord Chancellor, and could not be removed without it. O'Keefe alone was chief clerk, and no scrivenary clerk could succeed, as there was then no right of succession in the office of Registrar. The 6 & 7 W. 4, legislated on this state of facts. Who are the chief clerks? Two; Daly, who in the 22d section we are told had been first clerk, and O'Keeffe, who is there also designated as first clerk. The 11th section regulates all the offices of the Court of Chancery, and, in doing so, took into consideration the position of Mr. Kelly, and the other inferior clerks, and enacted that no subsequent state of facts should remove them; it then enacts that after a certain period those persons who had gone through a certain probationary state, should be appointed to the office of Assistant-Registrar, leaving to the Lord Chancellor the right to inquire into their qualification. If the Chancellor had first the power of appointment by approval, and after by selection, it is in my mind a strong argument to shew he was to have it in the interim, and that the

Crown, by express enactment, has given the Chancellor the power of appointment.

PENNEFATHER, B-I shall consider the construction of the 11th section alone, but, in so doing, the provisions of the 4 Geo. 4, must be kept in mind, and, attending to the provisions of the 11th section, it appears to me clear from the last clause in the section, "that after the whole number of clerks shall have been appointed by the Lord Chancellor under this act, then such vacancy shall be filled by the senior clerk, to whom no sufficient objection shall be made," that the succession upon which the relator relies, could not take place till six new clerks had been appointed. Taking into consideration the express enactment, and general meaning of the legislature, I am also of opinion that the office of chief clerk was personal to O'Keeffe, and the act is to be read as if it had said, that on a vacancy happening in the office of Assistant-Registrar, the same was to be filled by O'Keeffe. If this be so, it follows plainly that Kelly can have no right. It remains then to be considered where the right vested. This section is not to be construed by the exact words, but by the purport and intention of the statute, and, considering the different parts of it so forcibly alluded to by my brother Richards, I think this section must be considered as having given to the Chancellor a power of appointment, not confined to the single case of the disability of O'Keeffe, but whenever a vacancy should take place, reason and sense require this construction, and the cases cited by my brother Lefroy fully establish this position. If the intention of the legislature is clear and unequivocal, and if particular words are to be controlled by the intention the legislature had in view, I am satisfied the Lord Chancellor had the power of appointing a fit and proper person, till the time when the right of succession had arrived. I do not think there is in this case a casus omissus, or that such should ever be intended, where the legislature profess to deal with the subject for legislation. Attending to the words of the act, I think the crown gave the court the right of appointment.

PIGOT, C. B.-Considering the language of the 11th section of the 6 & 7 W. 4, c. 74, and the other portions of the act, I am of opinion there was no succession; and that at the time of the appointment of the plaintiff here, there was no chief clerk. The next question is, did the act confer on the Chancellor the right of appointment. I am forced to come to the conclusion there was a casus omissus, but whether the appointment be in the crown or the Chancellor, we must in this case assume that the crown did not interfere, and, not having done so, on the authority of Harding v. Pollock, I think the crown has given up the right of appointment, and as it does not appear from the statute the crown intended to reserve any right, we are warranted in holding that the appointment devolved on the Chancellor.

BLACKBURNE, C.J.-I am quite satisfied that there is no succession in this office till the new order of clerks are complete. It is as plain as any proposition can be, that the crown has no right of appointment; the intention was to vest it in the

Chancellor, with two exceptions, Robert Long, the then assistant-registrar, and O'Keefe, the description of chief clerk meaning the latter as plainly as if he were named. The court is bound to adopt that construction which will effectuate the intention of the legislature, the authorities on this point are conclusive. I think there was a casus omissus,

but that the crown has surrendered its right to the

Chancellor.

Judgment of Queen's Bench reversed.

Let the rule for the discharge of the defendant be made absolute, with costs, on the terms of his bringing no action.

Blackham having declined to accept these terms, his client preferring to bring her action,

BLACKBURNE, C. J., said the court would follow the practice of the Court of Exchequer, as stated by Mr. Meagher, and restrain the plaintiff from bringing her action. Rule absolute, with costs.

a fi. fa. and ca. sa. having issued together, a small sum only was levied under the former, and before returning the fi. fa. the defendant was taken in execution under the ca. sa.; the Court discharged her out of custody.

The Court will restrain a defendant who declines to be put under terms, from bringing an action. Writs of ca. sa. and fi. fa., having issued together against the defendant, returnable at the same time, a levy was made under the latter, the proceeds, after deducting the expenses of the exertion, amounted only to £3, the debt being £40. Before the fi. fa. was returned, the defendant was arrested

on the ca. sa.

Blackham, on a former day, having obtained a conditional order to discharge the defendant out of custody, on the ground that the ca. sa. could not be executed before the fi. fa. was returned,

The sale hav

F. Meagher now showed cause. ing proved inoperative, the plaintiff was entitled to have recourse to the ca. sa., without waiting for the return of the fi. fa., Edward v. Ross, (9 Price, 5); Dicas v. Warne, (10 Bing. 341); Primrose v. Gibson, (2 D. and Ry. 193.) The plaintiff has not acted with oppression, and the court will not interfere except in such a case.

Blackham in support of his rule. A fi. fa. and ca. sa. may issue together and be concurrent, but if one be acted upon, a return of that must be entered before a proceeding, can be taken upon the other. Miller v. Parnell, (6 Taunt. 370); Hodgkinson v. Walley, (2 Tyr. Ì74); Edmond v. Ross, (9 Price, 5); Kane v. Bridgman, (5 I. L. Rep. 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 custodia 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 knowledge of the amount of that levy, the defendant is taken on another writ, marked for the full amount.

EXCHEQUER OF PLEAS

Fitzgerald v. Coates.-Dec. 9. Practice-Interpleader Act-Costs of Sheriff. Where the sheriff has used due diligence the court will direct the costs of the rule to interplead, and of attendance on the motion to be paid by the party who shall fail on the issue.

Hemphill on behalf of sheriff, moved pursuant to a rule obtained under the Interpleader Act, an execution had been lodged with the sheriff on the 25th November last, under which he seized certain furniture, &c. On Nov. 27th a claim was put in by a third party to the furniture under seizure. The sheriff obtained the ordinary rule on the 6th of December.

O'Hagan appeared for the execution creditor.
Rollestone for claimant.

An issue having been directed, Hemphill applied for the costs of the order, and the present motion to be paid by the party who should fail on the trial. The practice of the Court of Queen's Bench is to give the sheriff his costs. There is a conflict of the cases in the Exchequer, but there is in court an order made by Baron Lefroy last Trinity Term for payment of the sheriff's costs by the unsuccessful party. The act vests the fullest discretion in the

court as to the costs. Counsel also cited Burke v.

Darcy, (9 I. L. R. 287.)

PENNEFATHER, B.-I shall declare the sheriff entitled to the costs of the rule and of this motion;

the question as to which party is to pay him to abide the event of the trial. The sheriff has used great diligence here, coming in on the earliest opportunity.*

Before Ponnefather, B. in Chamber.