Bail Court. JONES v. JENU. son v. Atkinson is also distinguishable. There, the award stated a certain sum to be due on a balance of accounts. Here the arbitrator, by his award, has made a distinct adjudication as to the other matters in difference between the parties which were not included in the action referred. As to the sum awarded in that cause, therefore, the awards stand precisely in the situation of a verdict. The arbitrator in this case not having awarded any compensation to the defendant for the arrest, although, perhaps, he might have done so as a matter in difference between the parties, does not therefore prevent the defendant having this rule made absolute.-He also contended, that on the merits, the rule should be made absolute. Cur, adv. vult. COLERIDGE, J., afterwards (June 7th) gave judgment.-This was a motion for allowing the defendant his costs under the 43 Geo. 3, c. 46. The arrest had been for 791. At the trial, the cause was referred, but a verdict was taken for 1007., to be reduced according to the award. The cause and all matters were referred; the costs of the cause to abide the event, and the costs of the reference to be in the discretion of the arbitrator. The arbitrator awarded that the verdict should be reduced to 251. 10s. 6d., over and above 157. already paid into Court. On showing cause, it was contended, upon the authority of Keene v. Deeble and Thompson v. Atkinson, that this was not a case within the statute. It is obvious, however, that there is a distinction in principle between those cases and the present, inasmuch as in Keene v. Decble no verdict was taken, the money therefore could not be said, in the words of the statute, to have been recovered: and in the latter, the arbitrator had taken the arrest without reasonable cause, into his consideration, as a matter in difference between the parties, and awarded compensation in respect of it. There are, indeed, expressions to be found in the judgments in the former case, which might seem to apply even where a verdict had been taken; but none which extend to such a reference and such an award as this. Here the arbitrator, in the first place, reduces the verdict, and disposes entirely of the action; he then adjudicates separately concerning a second action brought by the plaintiff against the defendant, deciding that there was no cause for bringing it, directing it to cease, and the plaintiff to pay the costs; and, lastly, he adjudicates on a third claim by the plaintiff on the defendant, for which no action had been brought, and directs the payment of a sum of money in respect of it to be made on a future day. The arbitrator, therefore, has kept the cause distinct from the other matters, and nothing is stated to show, that in the trial of the cause before him, any medium of proof was resorted to, not available at nisi prius. I cannot then discern any principle upon which the defendant's rights, under the statute, as to the cause thus distinctly tried and disposed of, can be affected by the circumstance, that other matters in difference are at the same time and in the same submission referred to, and adjudicated on by the same arbitrator. No such consequence appears to flow as a legal conclusion from such premises, nor can I see any ground for inferring any agreement on the defendant's part to waive such rights. But upon the merits it was contended, that this rule should be discharged, and upon looking through the affidavits, I am of that opinion. It appears, that before the arbitrator, the plaintiff established every item in his particulars of demand, to an amount exceeding that for which the defendant was held to bail. The reduction of the verdict was occasioned by the defendant's establishing a set-off to the amount of nearly 401. But it appears to me, that the plaintiff neither did know, nor had reason to suspect the existence of any such demand. In the defendant's affidavit it is not stated, that before the arrest he had ever made any claim on account of it; in the plaintiff's affidavit it is positively denied that he ever had; and it is alleged that he had settled an account in which the items should have appeared, but did not; that, subsequently to this, he had on several occasions borrowed money of the plaintiff, and when pressed for payment, been wholly silent as to the present claim; and further circumstances are stated with respect to the transaction out of which the set-off grew, from which it is a reasonable inference that this claim was merely an after-thought. I am, therefore, of opinion, that the plaintiff, when he arrested the defendant, had a reasonable and probable cause for holding him to bail for the full sum, and this rule must consequently be discharged. DOE d. CHILDERS v. ROE. Rule discharged. Bail Court. JONES v. JEHU. against the casual ejector, where the tenant in pos- session was keep MANSEL moved for judgment against the casual ejector. The affidavit Rule nisi granted stated, that the premises had been let by indenture to a person who for judgment had underlet part to another. The part which was in the possession of the original lessee was shut up, and a blacksmith, in the neighbourhood, kept the key for the purpose of showing the premises, and letting them for the lessee. Many inquiries had been made for the lessee himself, who could not be met with, who was keeping out of the way, and was living out of the jurisdiction of the Court. The declaration and notice had been served on the black- kept the key of smith, but the affidavit did not state that it was "the tenant in possession" who had been served in that way. There had been service on the wife of the of the premises, under-tenant on the part of the premises let to him. Mansel submitted, that as to the first tenant, he was entitled to a rule nisi at least; and also that the service on the under-tenant made the case come within the rule, that service on one of two joint-tenants was sufficient, so as to entitle him to a rule absolute. COLERIDGE, J.-The affidavit will not do; it must state that the deponent served "the tenant in possession," by doing so and so. It must be in the right form. The under-tenant cannot be considered as a joint-tenant, he is undertenant of part only. You may take a rule as to the part in his possession only. Mansel, the next day, renewed his application, on an affidavit, stating the service on "the tenant in possession," by service on his agent, the blacksmith, and the Court granted a rule nisi for that part of the premises. had been made on a person who the premises. Service on an under tenant of part cannot be considered as service on a joint-tenant. Bail Court. for relief under the Interpleader Act, and on hearing the case his rule is discharged, he has afterwards' a reasonable time The KING V. The Sheriff of HERTFORDSHIRE. If a sheriff applics N the 19th of January, a fi. fa. issued on a judgment. On the 15th of April, the sheriff was ruled to return the writ, and on the 20th, which was Easter Term last, the sheriff obtained a rule nisi, under the Interpleader Act, 1 & 2 Will. 4, c. 58, which, on coming on to be heard on the 7th of May, was discharged (a). On the same day the plaintiff's attorney searched the office to see if the sheriff had made any return to the fi. fa., and finding he had not, the same day obtained an attachment against him for not doing so (b). The 8th of May was a Sunday, and on the 9th, which was the last him the same day day of the term, the sheriff made a return of nulla bona. A rule to show cause why that attachment should not be set aside, having been obtained on the first day of this term, to make his re turn; and there fore an attachment obtained against for not making a return, is irre gular. C. Turner afterwards showed cause.-This attachment was regular. The sheriff ought to have made his return, notwithstanding the rule obtained under the Interpleader Act. He has no right to delay and take the chance of the decision of the Court under that act. It would be dangerous to give him the opportunity to shape his return according to that decision. Here the sheriff has returned nulla bona, which is inconsistent with his application under the Interpleader Act, when he allowed he had made a seizure. The consequence of this return is, that the execution creditor has to contend with the sheriff the truth of that return. The only ground on which this attachment can be discharged, is on the ground that the sheriff had the same time to make his return after the interpleader rule was discharged, that he had at first. The case of St. Hanlaire v. Byam (c), is an authority against that position. The case of Green v. Glassbrook (d), is an authority to show, that when a party chooses to elect to take the benefit of a statute, he must take it with all its consequences. The consequence of the sheriff applying in this case under the Interpleader Act, is, that on the rule being discharged, he is liable to an attachment. At the time the sheriff applied for this rule, he had already made his return, yet he concealed that fact from the Court, as well as what the nature of that return was. At any rate the attachment should only be set aside on payment of costs. J. Bayley, contrà, was stopped by the Court. COLERIDGE, J.-I have no difficulty in this case, as it is quite clear, when the facts are looked at, that this rule must be made absolute. This rule has grown out of an application by the sheriff to the Court under the Interpleader Act. That application assumes that the sheriff has made no return, and now the ground on which this rule is resisted is, that the sheriff is bound to make a return while that application is pending. If he does so, it is inconsistent with his application. It is not to be expected he should do so, and if not, he must have a reasonable time to make his return after the application (a) See the case Lashmar v. Claringbold, ante, 87. (b) See the Rule, M. T. 32 Geo. 3, 4 Term Rep. 496. (c) 4 Barn. & Cress. 970. (d) 1 Hodges, 27; 1 Bing. N. C. 517; 1 Scott, 402. Bail Court. The KING บ. HERTFORD SHIRE. is disposed of. If, then, he is allowed to do that, he cannot be bound to make his return the same day. That alone is sufficient cause to make this rule absolute, without reference to the cases that have been cited. Mr. Turner has relied on the return of nulla bona. I have disposed of the point The Sheriff of of his making some return; then as to the particular nature of this return. The sheriff came to the Court for protection under the Interpleader Act, and he was refused that protection under the circumstances of the case, but that does not take away from him his right to decide for himself, and to return nulla bona or levari feci. The return of nulla bona is not inconsistent with what he has said when applying to the Court, namely, that he has seized goods under the fieri facies, which were in the possession of the defendant. The sheriff has made no election, but has only endeavoured to get the protection of this Court. The rule must be absolute for setting aside the attachment, and without the condition of the payment of costs, as the attachment never ought to have issued. Rule absolute. LAWRENCE V. MATHEWS and others. dues In an action in case for an ob struction in collecting tolls of a mine, with a count The in trover for the for one, under ore, against the adventurers who claimed an interest in the ore, but dis claimed as to the the Court could THE defendants were sued by the plaintiff as partners and adventurers in a mine. The first count of the declaration was in an action on the case, and stated an obstruction by the defendants in collecting the tolls and of a tin mine; the second count was a count in trover for the ore. defendants had paid the dues in question to three different lords some time past, and the plaintiff made a claim to part of the share of for which the action was brought. In last term, a rule was obtained the Interpleader Act, 1 & 2 Will. 4, c. 58, s. 1, by the defendants, calling tolls:-Held, that on William Carlyon, the lord to whom they had been accustomed to pay not entertain an the share claimed, to appear and state the nature of his claim. The application by the affidavit on which the rule was granted stated, that the defendants were the Interpleader sued as partners and adventurers in the mine, and that they had worked it Act. since the year 1830; it also stated the different shares they had paid to the different lords, and some notices of claims made by the plaintiff to part of the tolls, and of the ore; it also stated that the defendants claimed no interest in the tolls or dues, but did not state that they claimed no interest in the ore. W. C. Rowe, for the plaintiff, this term showed cause. This is not a case within the act, 1 & 2 Will. 4, c. 58, s. 1, as it does not extend to an action on the case, the only forms of action are assumpsit, debt, detinue, and trover. It is also clear that the defendant has an interest in the ore; it is stated he is one of the adventurers, and has worked the mine, and the affidavit does not state he has no interest in the ore raised. He was then stopped by the Court. Jardine, for the defendant.-If the Court does not grant this rule, it will be impossible for the defendant to have the benefit of the statute in an action of trover, as the plaintiff will always be at liberty to add a count in case. There is no case to be found analogous to the present, but it is sub defendants under Bail Court. LAWRENCE v. MATHEWS. Rule granted to show cause why service of a decla ration in eject ment on the clerk mitted, that the Court, having jurisdiction over the count in trover, may dispose of the whole of the case under the act. Montague Smith, for William Carlyon. COLERIDGE, J.-How can I interfere unless I can dispose of the whole of the demand? The words of the act are, that upon application “in any action of assumpsit, debt, detinue, or trover, such application being made after declaration and before plea, by affidavit or otherwise, showing that such defendant does not claim any interest in the subject-matter of the suit, but that the right thereto is claimed, or supposed to belong to some third party," &c. The affidavit on which the motion is made ought, therefore, to go to the whole matter of the suit. All that the defendants here say is, that they do not care to whom they pay the toll, but they do claim an interest in the ore, so that there is this difficulty, that as to the count in case, over which the Court has no power, they entirely disclaim all interest; but as to the count in trover, over which the Court has power, they do claim an interest. The rule must be discharged, but without costs, as it is a new point; and I cannot say it has been vexatiously brought here, though I have no doubt the rule cannot be sustained. DOE d. Ross v. ROE. Rule discharged. CHANNEL moved for a rule to show cause why service of a declaration in ejectment on the clerk of the Grand Junction Canal Company, should not be good service. There is no provision in the act incorporating that Company of an incorporated enabling them to sue in the name of their clerk, or declaring that service of a declaration in ejectment on him should be good. The service was on the clerk on the Company's premises, but not on the premises sought to be recovered. Doe v. Roe (a), is a case nearly in point. company, should not be good service. COLERIDGE, J.-You may take a rule, nisi. (a) 1 Dowl. P. C. 23. Recognizances of bail taken under statute 5 & 6 IV. & M. c. 11, on the re moval of an indictment, cannot be estreated, the defendant having agreed with the prosecutorto plead guilty and submit to a nominal fine, without the know ledge of the bail. The KING v. ROGERS and others. THIS was a rule calling on John Duckett and John Rogers, the bail for one of the defendants, Francis Rogers, to show cause why the recognizances of bail entered into under the statute 5 & 6 W. & M. c. 11, on the indictment being removed by certiorari into this Court, should not be estreated, the defendant having been convicted of the offence charged. At the trial it was agreed that defendant should plead guilty to the indictment, and should submit to a nominal fine, but should not be brought up to be fined until the decision of a certain action of replevin. The judgment was accordingly entered up in that interlocutory sort of way in which it now stood. The bail were not parties to the agreement. |