ÆäÀÌÁö À̹ÌÁö
PDF
ePub

cerning the practice and proceedings of the courts holden under the 9 & 10 Vict. c. 95, and for the execution of the process of such courts, and in relation to any of the provisions of the said act as to which there may have arisen doubts or have been conflicting decisions in the said courts." Suppose the 148th rule had in terms provided that the high-bailiff might recover these costs by an action in the Court of Common Pleas the answer obviously would be, that the judges had no authority to make such a rule. [He was stopped by the court.]

JERVIS, C. J.-Assuming for the sake of argument, without offering any opinion upon it,-that the high-bailiff might have been entitled under the circumstances to deduct the 157. costs, provided he had made his claim at the proper time, I am of opinion, that, having paid to the clerk of the Newcastle county court the whole amount of the levy after deducting only his fees for executing the fieri facias, the possession money, and the broker's charges in respect of the sale of the goods, and having allowed it to be transmitted to the clerk of the Liverpool county court, and by him paid over to the execution-creditor, he has no right to bring an action against him for the expenses of the interpleader proceedings. Mr. Mills says that these are fees due to the high-bailiff by virtue of the statute, and therefore an action will lie for them. It is a mistake, however, to call these "fees:" they are expenses incurred by the high-bailiff in the prosecution of the interpleader proceedings. On that simple ground, therefore, viz., that there is no duty cast upon the execution-creditor to pay the amount of these expenses, independently of the order of the judge, I am of opinion that the plaintiff is not entitled to recover.

[*276

MAULE, J.-I am of the same opinion. The facts here stated do not present anything like a case for money had and received. The right which the high-bailiff at the most had, was, to deduct the costs of the interpleader proceeding from the amount of the levy, under the judge's order. Instead, however, of doing that, he pays the money into court, and allows it to be handed over to the execution-creditor, the now defendant. That being the state of things, I do not see how the present plaintiff can claim the amount as money had and received to his use. It cannot be said that there was any implied undertaking on the part of the now defendant to pay the costs in question, or any equity entitling the now plaintiff to claim them from him. distrain for it as rent, as call it fees: it is no more than it is recoverable as rent, or interest of money. The present action seems to me to be a desperate shift by some chance to obtain from the defendant payment of money which, if ever the plaintiff was entitled to recover it, he has allowed the opportunity to go by. I think the defendant is clearly entitled to judgment.

As well might he recoverable as fees

WILLIAMS, J.—I am of the same opinion. Certainly, the construction of the county court rule No. 148, as applied to the 118th section VOL. XV.-26

of the 9 & 10 Vict. c. 95, is somewhat obscure. It may be, as Mr. Mills suggests, that, in order to save the necessity of two orders as to costs, it may have been intended that there should be one order only, in general terms, and that the bailiff shall have his costs of the interpleader by way of retainer out of the sum levied. But not having done so, the question is, whether he can recover the amount by action. *If this were meant to be an action for money had and received, *277] all the circumstances relied on to show that the money in question was money had and received by the defendant to the use of the plaintiff, should have been stated. It is not stated whether the plaintiff paid the money over under a mistake of fact or of law. I cannot, therefore, say that an action will lie. To say that the costs in question are "fees" within the meaning of the statute, is altogether a mistake.

CROWDER, J.-The only question upon this case, is, whether the facts disclose a right of action by the plaintiff against the defendant. I think they do not. It is unnecessary to decide how far the rule referred to is applicable to such a state of things as existed here. But, assuming that the high-bailiff might have retained these costs out of the money levied, he has not exercised that power. He has paid the money into court, and allowed it to be paid out to the plaintiff in the suit in the county court. If he is now entitled to claim to be repaid, possibly he may have a remedy by applying to the judge of the county court. But it does not follow that he has any right of action. It appears to me that he has no such right. The defendant, therefore, must have judgment. Judgment for the defendant.

*278]

*WOLLASTON, Appellant; STAFFORD, Respondent.
Nov. 9.

A landlord, having distrained for rent, was induced to withdraw the distress, by the tenant's assurance (which was false) that a particular debt had been satisfied. The creditor having proceeded to judgment and execution, the tenant's goods were seized by the sheriff:-Held, that the landlord was entitled to a year's rent, under the statute 8 Anne, c. 14.

THIS was an appeal from a decision of the judge of the Leicestershire county court. The following case was stated by the judge:The plaintiff (the respondent), apprehending proceedings against his tenant (who was also his brother-in-law) on the part of a creditor named Millican, entered a distress for upwards of a year's arrears of rent, but was induced to withdraw it, on the tenant's assurance that Millican's debt was settled, and payment of the costs.

Within a month, Millican, having obtained judgment, proceeded to

execution.

The plaintiff gave notice to the sheriff to retain 25l., for a year's rent; but the sheriff (the defendant), who was indemnified, refused to do so, on the ground that the landlord, in withdrawing the distress, had lost his right,-which was the question in the case.

T. Bell, for the appellant.-[JERVIS, C. J.-The county court judge. has no right to save points for us: he should decide for himself; the statute 13 & 14 Vict. c. 61, s. 12, giving the right only to appeal "from some decision or determination in point of law." Phipson (who appeared for the respondent).—The judge, in point of fact did decide in favour of the plaintiff. MAULE, J.-Let us hear the objection to that. The case may be considered as amended.] The right of distress was under the circumstances gone, by the plaintiff's voluntarily abandoning the distress and, inasmuch as he could not legally have entered to make another distress, the plaintiff ceased to be entitled to the protection of *the statute 8 Anne, c. 14, s. 1. In Bagge, App., Mawby, [*279 Resp., 8 Exch. 641,† half a year's rent being due and in arrear from a tenant who had previously committed an act of bankruptcy, the landlord put in a distress, and was about to proceed with the sale of the goods seized, when, in consequence of a notice from a creditor of the tenant, stating that he was taking proceedings in bankruptcy against the tenant, and that he thereby warned the landlord not to sell, and threatened to hold him accountable if he did, the landlord withdrew the distress without obtaining payment of his rent. At that time, no assignee had been appointed; but the tenant was afterwards declared bankrupt, and the creditor who gave the above notice was made assignee. The landlord subsequently distrained a second time for the same rent, but the goods were sold under the direction of the assignee, and the proceeds of the sale were paid over to him. It was held, that, as the landlord had abandoned the first distress without any sufficient excuse for so doing, the second distress was illegal, and that he could not maintain an action against the assignee to recover the proceeds of the goods. Parke, B., in delivering judgment, said: "There is nothing more clear than this, that a person cannot distrain twice for the same rent; for, if he has had an opportunity of levying the amount of the first distress, it is vexatious in him to levy the second, unless there be some legal ground for his adopting such a course, as, for example, in the instance put by Lord Mansfield, C. J., in Hutchins v. Chambers, 1 Burr. 579. If there has been some mistake as to the value of the goods, and the landlord fairly supposed the distress to be of the proper value at the time of levying the first distress, and he afterwards finds. it to be insufficient, he may then distrain for the remainder; or, if the tenant has done anything equivalent to saying forbear to distrain now, and postpone your distress to some *other time,' in such cases, the landlord may distrain a second time. But, if there is a fair opportunity, and there is no lawful or legal excuse why he should

[*280

not work out the payment of the rent by means of the first distress, his duty is to work it out by the first distress, and he cannot distrain again. The question, therefore, in this case comes simply to this, whether the notice that was given by the respondent (who was merely the petitioning-creditor, and had no other interest whatever in the property) to the landlord, to desist from selling on the first distress, was a good cause or excuse for his abstaining from exercising the power of distress. We are all of opinion that it was not, and that it was a mere idle threat, which he might and indeed ought to have disregarded. It cannot be said that the first distress was abandoned by the act of the tenant, for, at the time the respondent gave the notice, he had no interest whatever in the subject-matter, since at that time he had not been appointed assignee. We consider the notice as a mere idle threat from a stranger, who had no right to interfere with the distress, and that the landlord ought to have proceeded with that distress." The only distinction between that case and the present, is, that there the abandonment of the first distress was voluntary, upon a statement made by a stranger. [JERVIS, C. J.—The case states that the respondent was induced to withdraw the distress, on the tenant's assurance that Millican's debt was settled. What do you understand by induce?"] "To induce," means, to introduce," to bring into view," according to Johnson. [JERVIS, C. J.-That cannot be the meaning here; for, the tenant kept the facts out of view, and falsely told the landlord that Millican's debt was settled. It means rather to influence," "to persuade."] To make the second distress lawful, it should appear that the first was withdrawn at the request of the tenant. [MAULE, J.-Of that there is no doubt. And I think it is equally clear that the distress here was withdrawn at the tenant's request.] Phipson, contrà, was not called upon.(a)

*281]

JERVIS, C. J.-I agree with my Brother Maule that the statement of the case leaves it free from doubt that the first distress was withdrawn by the landlord at the request of the tenant, and therefore the county

(a) The points intended for argument on the part of the respondent, were,— That, by the 8 Anne, c. 14, s. 1, the sheriff was bound to pay the landlord all such money as was due for rent at the time of the seizure under the execution, not exceeding one year:

That, as the respondent was induced to withdraw the distress upon the tenant's assurance that Millican's debt and costs had been paid, and by necessary inference (upon the facts stated in this case), at the request of the tenant, in kindness to him, and not vexatiously, the withdrawal of the distress did not deprive the respondent of his right to have paid him a year's rent by the sheriff:

That the rent for which the distress was entered was not, under the circumstances, satisfied by such entry and the subsequent withdrawal, and consequently the rent was still due at the time the sheriff seized, and, being due, the respondent was entitled to claim it under the statute:

That the conduct of the tenant was a fraud on the respondent, and the respondent being entirely induced by such fraud to withdraw the distress, he could not be prejudiced by such withdrawal so induced, and he was entitled to claim the year's rent:

And that a mere seizure under a distress, and subsequent abandonment without sale, was no satisfaction of rent, and therefore the rent was still due at the time of the taking by the sheriff, and the respondent was entitled to a year's rent.

court judge properly decided in favour of the plaintiff. The judgment must, therefore, be affirmed, with costs. The rest of the court concurring,

Judgment affirmed, with costs.

*LEVERSON v. SHAW. Nov. 6.

[*282

The 15 & 16 Vict. c. 54, s. 1, provides that a scale of costs and charges to be paid to attorneys in the county courts shall be prepared, and submitted for the approval of certain of the judges, and that, "from and after a day to be named by such judges," the scale so allowed shall be in force in every county court. The act then goes on to provide, that "all costs shall be taxed by the clerk of the court;" and that "no attorney shall have a right to recover at law from his client any costs or charges not so allowed on taxation." Business was done by an attorney in a county court, and an action brought in respect thereof, before the allowance of any scale of costs under the above act:-Held, that he was not precluded from recovering his costs.

THIS was an action upon an attorney's bill.

Plea, never indebted. At the trial, before Jervis, C. J., at the sittings at Guildhall after the last term, it appeared that the plaintiff claimed 241., 51. of which was for costs incurred in conducting a suit in a county court, in which the now defendant had recovered a sum of 31. 188. A verdict having been found for the plaintiff for the amount claimed,

Lush, in pursuance of leave reserved, now moved to reduce the verdict to 197., on the ground that the costs incurred in the county court were not recoverable unless taxed and allowed by the clerk of the court, pursuant to the stat. 15 & 16 Vict. c. 54, s. 1. [JERVIS, C. J.—It is hardly worth while to move; for, I find I have made a note, I shall certify, if necessary."] It was decided in this court, in a case of Ex parte Keighley, 9 C. B. 338 (E. C. L. R. vol. 67), 1 L. M. & P. 304,overruling a case of In re Clipperton, 12 Q. B. 687 (E. C. L. R. vol. 74), that the 91st section of the county court act, 9 & 10 Vict. c. 95, did not preclude an attorney from recovering from his client a reasonable remuneration for his work and labour done out of court, before the institution of a suit, or take away the right of the superior courts to allow on taxation a reasonable remuneration for this description of labour. And that construction was adopted by the Court of Queen's Bench, in a subsequent case of In re Toby, 12 Q. B. 694 (E. C. L. R. vol. 74), 1 L. M. & P. 426. But now, by the 15 & 16 Vict. c. 54, s. 1, it is enacted that it shall be lawful for *the Lord Chancellor from time to time to appoint five of the [*283 judges of the courts holden under an act of the 9 & 10 Vict. c. 95, from time to time to frame a scale of costs and charges to be paid to attorneys in the county courts, to be allowed as between attorney and client and as between party and party; and such scale of costs and charges as shall be certified to the Lord Chancellor under the hands of the judges so appointed or authorized, or any three of them, shall be

S

« ÀÌÀü°è¼Ó »