Bail Court. The defendant cannot have a certiorari to re move a conviction for being found in pursuit of game, under 1 & 2 IV. 4, c. 32. The KING v. HESTER. THE defendant had been convicted under 1 & 2 Will. 4, c. 32, s. 30, for being found in pursuit of game. He appealed to the Quarter Sessions, where the conviction was confirmed. Butt, moved for a certiorari to remove the conviction into this Court.-It might appear by 1 & 2 Will. 4, c. 32, s. 45, that the defendant is not entitled to have a certiorari, as that section enacts that no conviction under that Act shall be removed by certiorari. This conviction, however, was not in fact a conviction under that Act. Section 37 provides, that the penalties shall be paid to the overseers of the poor; but, by a subsequent Act, 5 & 6 Will. 4, c. 20, s. 21, it is provided, that a moiety of the penalty should go to the informer. That Act came into operation on the 30th of July last, and this was a conviction for an offence committed since. This therefore is a conviction under the last Act, which contains no clause taking away the certiorari. The defendant therefore contends, that the clause in the 1 & 2 Will. 4, taking away the certiorari, does not apply. A case of The King v. Boultbee was argued a few days since in the full Court, and a certiorari was granted. [Patteson, J.-There the conviction was quashed by the Sessions, and the question was, whether the Crown was included, not being specially named in the clause taking away the certiorari. It was held that it was not, and a rule to quash the certiorari was granted.]-Still a certiorari may be granted, this being in fact a conviction under 5 & 6 Will. 4, c. 20, s. 21. PATTESON, J.-I think it is impossible to say that this is a conviction on the last Act. The offence is created by the first, and the last only regulates the payment of the penalty. It still therefore remains a conviction under the first, and the clause taking away the certiorari cannot be got rid of. Rule refused. The Court will not restrain a Sheriff from selling goods HARRISON V. FORSTER. A Fieri facias issued on a judgment against the defendant, under which the Sheriff took possession of some goods. Notice was given to the Sheriff that the goods did not belong to the defendant but to Kerr, who required the Sheriff not to sell, and offered him an indemnity. The Sheriff refused the indemnity, and said he should proceed to the sale. Hurlstone applied, on the part of Kerr, for a rule to restrain the Sheriff from selling. He did not know of any authority for the application, but stated it was of consequence that the goods should not be sold, as there was amongst the property sold a Bible containing a pedigree, besides other things which were of value to the owner, though of little intrinsic value themselves. PATTESON, J.-The Sheriff seizes the goods, refuses the indemnity offered him, and proceeds to a sale. He does that at his own peril, and I cannot give any assistance to the claimant, Rule refused, Bail Court. HARRISON บ. FORSTER. DRINKER V. PASCOE. THIS that where a rule is moved with costs, and is discharged generally, the costs are given, applies gularity only. to rules for irre HIS was an action for an assault brought by a maid-servant against her 1. The practice master. A rule had been obtained last term calling on the plaintiff's attorney to show cause why the action should not be discontinued, on account of the plaintiff having instructed her attorney not to go on with it, and why he should not pay the costs of the rule. On showing cause in full Court the last day of last term, the Court discharged the rule. Platt then asked for the costs, and indorsed his brief as if the costs were given, understanding 2. A rule having been discharged the Court to intimate that the rule was to be discharged, and nothing said about the costs, and that therefore the costs were given as a matter course. It appeared that Martin, who was in support of the rule, did hear the observation of the Court. The rule was afterwards drawn up form as discharged with costs. of without any mention of costs, though it was the not intention of the in Court to give the costs, and the Martin, this term obtained a rule to show cause why that rule should not discharged with be amended, by striking out the words "with costs." Platt and Heaton, showed cause in the first instance.-The rule in all cases is, that where a rule is moved with costs, and is discharged generally, nothing being said about costs, that, as it is moved with costs, it is discharged with costs. That rule is not confined to cases of irregularity only. Though the rule of M. T. 37 Geo. 3 (a), in terms applies to cases of irregularity only, still the practice of the Court has been to do the same in all cases. Even if the practice extends to cases of irregularity only, still this rule was rightly drawn up, for this was a case of irregularity. The ground for discontinuing the action was, because the plaintiff had forbidden her attorney to proceed with it. That was strictly an irregularity. It is moreover clear, from what the Court intimated on discharging the rule, that the intention of the Court was to grant the costs of the application. This rule must therefore be discharged. Martin, contrà.-The question here is merely, whether the other side is entitled to the costs of the rule discharged last term. The practice, as laid down both in Tidd's and Archbold's Practice, is distinct, that it is in cases of irregularity only that a rule discharged without any mention of costs gives the costs to the party opposing it. The rule of M. T. 37 Geo. 3, evidently applies to cases of irregularity only. The necessity of that rule proves that the practice in other cases must be different. It cannot be contended that in this case there was an irregularity. The rule was moved on account of the plaintiff's attorney proceeding with the cause contrary to his instructions. It is clear that it was discharged last term without costs, and therefore the rule (a) 7 Term Rep. 82. costs, the Court, the following term, refused to alter it. Bail Court. DRINKER บ. PASCOE. which has been drawn up discharging it with costs, contrary to the order of the Court, must now be amended. PATTESON, J.-I will speak to the Chief Justice as to what passed in the Court last term. It is right that it should be settled whether the rule of M. T. 37 Geo. 3, which in terms applies to cases of irregularity only, applies to all cases where a rule is moved with costs, as there ought to be no doubt on the subject. I shall take time to consider that question. Next, as to the irregularity, my impression is strong that it was not an irregularity, but misconduct on the part of the attorney; but I shall take time to consider that also. Then, as to the rule having been in fact discharged without costs, I have a difficulty, as it is a question whether I have any right to disturb the order of the Court. Cur. adv. vult. PATTESON, J. afterwards (January 7) gave judgment.-I have spoken to the Chief Justice, and, as I expected, he has no recollection of this case. I have also mentioned it to the other judges, and we have no doubt but that what Mr. Platt indorsed on his brief was correct. It perhaps shows no more than this:-that the Court would have considered the question of costs, unless it had been for the supposed practice extending to all cases. I have looked into the practice, and it is desirable that it should be settled what that practice is. It is clear that the rule of M. T. 37 Geo. 3, which in terms applies to cases of irregularity only, has not been extended to other cases by any other subsequent rule. Therefore, the argument that that rule extends to all cases where a rule is moved with costs, is clearly wrong, as it is confined to cases of irregularity only. I do not mean to say, if a rule were moved on a matter of irregularity, but did not contain the words "for irregularity," that the Court would be strict, and would not follow the rule that if discharged generally it was discharged with costs. It is fit that such a case should be discussed if it should arise hereafter. But I am sure that all cases except rules for irregularity are discharged without costs, unless costs are particularly mentioned. Next, it was contended that this was an irregularity. I said before, that I thought it was not to be so considered. It was on account of the attorney continuing to carry on the action after he had received an order from the plaintiff not to do so. That was not an irregularity, and therefore in that respect the argument fails. The third point contended for was, that the Court did really intend to discharge the rule with costs. I have a difficulty in saying that if the Court were to say nothing about costs, and a rule were drawn up without any mention of costs, whether it would be competent for the Court to enter again into the matter in a subsequent term, even if the Court intended to discharge the rule with costs; but if the Court inadvertently omitted to say any thing about costs, I think the party would have a right to apply to the Court. Here the costs are given by the rule as drawn up, and the question is, if I am to disturb it. If the Court did not intend to discharge the rule with costs, perhaps I might interfere; but as it appears the Court would have given the costs, and as indeed I think I also should give them were the matter res integra, I shall not disturb the rule. Rule discharged. DENNEHAYE v. RICHARDSON. Bail Court. a cause, the Court peremptory undertaking, on the tiff paying the costs of the day. NOTICE of trial was given in this cause for the third sittings in Easter After several deTerm last. The plaintiff did not proceed to trial, and in Trinity Term the faults in trying defendant moved for judgment as in case of nonsuit. The rule nisi was dis- will enlarge a charged on a peremptory undertaking to try at the Sittings after the term. The plaintiff again made default, and in Michaelmas Term had the peremp- terms of the plaintory undertaking enlarged to try at the Sittings after that term. The cause was set down in the paper for the 28th of November. On the 25th and 26th the plaintiff delivered his briefs to counsel, and on the evening of the 27th a consultation was appointed. Counsel then suggested that certain proceedings in bankruptcy should be given in evidence. The next morning, before this evidence could be procured, the cause had been called on, and the evidence not being ready, the record was withdrawn. A rule was this term obtained to show cause why the peremptory undertaking should not be again enlarged. Humfrey, showed cause, and contended, that if the peremptory undertaking was enlarged at all, it should only be on the terms of the payment of the costs of the day. He referred to a case decided this term in the Court of Exchequer. Thesiger, contrà. PATTESON, J.—It seems to me that it would be contrary to the rule of Court (a) to impose those terms on the plaintiff, but I will inquire as to the practice. Cur. adv. vult. PATTESON, J. afterwards, the same day. I have applied to the Court of Exchequer, and hear that they do in some cases make it a condition, on enlarging a peremptory undertaking, that the plaintiff should pay the costs of the day. Rule absolute on those terms. (a) Reg. Gen. H. T. 2 Will. 4, 69; 1 Dowl. P. C. 192. OSTLER V. BOWER. THIS was a rule obtained on the part of the Sheriff under the Interpleader Act, 1 & 2 W. 4, c. 58, s. 6. On the affidavits it appeared that the plaintiff was an attorney, and was also under-sheriff of the county. It was objected, under these circumstances, that as the under-sheriff gave a bond of indemnity to the Sheriff, the application was made on the part of the undersheriff himself, who was the plaintiff in the cause, and that therefore the rule must be discharged. J. Hildyard, for the Sheriff; N. Clarke, for the execution creditor; Wightman, for one claimant; Butt, for another. The Court discharged a rule obtained by the Sheriff under the it appearing that a son of the plainpartnership with tiff, who was in his father as an attorney, was the under-sheriff. Bail Court. OSTLER บ. BOWER. PATTESON, J.-I do not know that this point has ever arisen. Where the plaintiff himself is under-sheriff, how can he deny collusion? It seems to me the Sheriff has no right to apply, he having a bond of indemnity from the under-sheriff. Cur. adv. vult. PATTESON, J. on a subsequent day (January 22.)-This is an application under the Sheriff's clause in the Interpleader Act. I have considered all the circumstances, and think the rule ought to be discharged. I think it sufficient to say, that unless there are particular circumstances, where the under-sheriff is the plaintiff in an action, that the Act does not apply. The Act was intended to secure the Sheriff, but the under-sheriff gives a bond to indemnify the Sheriff, and therefore he runs no risk. Therefore, on the general principle, where the under-sheriff is plaintiff, the Act does not apply, and no rule ought to have been granted. It was then suggested, that the real facts of the case were, that a son of the plaintiff, and who was in partnership with the plaintiff, was the undersheriff. The father and son having the same christian as well as sirnames, and the father having sued without naming himself "the elder," had probably been the cause of a mistake in swearing the affidavits that the plaintiff himself was under-sheriff. Those facts having been ascertained and admitted, PATTESON, J. on a subsequent day (January 28) said,-The case of Dudden v. Long (a) is not so strong a case as the present. In this case the under-sheriff is not only the partner of a person connected with the proceedings, but is the partner of the plaintiff in the action, and is moreover his On reference to that case, I cannot do otherwise than discharge this son. rule. Rule discharged, without costs. (a) 1 Bing. N. C. 299; 3 Dowl. P. C. 139. 1. An affidavit describing the deponent as "the defendant in the cause," and as "now in the cus tody of the Sheriff of Middlesex," suf- and H. T. 2 W. 4, I. s. 5. 2. An application to dis JERVIS V. JONES. THE defendant in this cause had been arrested, on the 16th of January last, for the sum of 475l., being four years and three quarters arrears of an annuity up to the 1st of February, 1832. A rule had been obtained on the 21st of January to show cause why he should not be discharged out of the custody of the Sheriff of Middlesex, as he had been discharged under the Insolvent Debtors' Act, 7 Geo. 4, c. 57. The defendant filed his petition to the Insolvent Court on the 1st of February, 1832, and on the 9th delivered in his schedule, in which was inserted, amongst his other debts, the following as due to the present plaintiff:-" Major William Davies Jervis,-1000l. charge a defendant out of custody, made five days after the arrest, is sufficiently early. 3. An insolvent having inserted in his schedule the consideration given for, and the amount of an annuity, but not some arrears due at the time of filing the schedule :-Held, that he could not afterwards be arrested for those arrears, there being no intention to mislead. |