count bills indorsed by a person named Anderson; and some of those bills the defendants indorsed or guaranteed; others were discounted by the plaintiffs without such indorsement or guarantee. On one occasion Anderson brought to the defendants a bill WIGHTMAN, J.-I cannot distinguish this case from for upwards of 3000l., purporting to be accepted by Young v. Cole, where, upon a sale of Guatemala Van Notten and Co., and indorsed by himself, for Bonds, the purchaser was held entitled to recover the discount; and that bill was then taken by the defen- purchase-money, the bonds delivered not being real dants to the plaintiffs for the same purpose. The Guatemala Bonds such as were saleable on the Stock plaintiffs inquired whether the defendants would guar- Exchange. My brother Erle concurs in this judgment. antee or indorse; to which the defendants replied in Lord CAMPBELL, C.J.-Upon the evidence on both the negative, and the plaintiffs then discounted upon sides in this case, it was quite clear that the transthe faith of the acceptance of Van Notten and Co. It action between the plaintiffs and defendants was quite afterwards turned out that the only genuine signature separate from that between the defendants and on that bill was the signature of Anderson, who had Anderson. As to the other objection, I am clearly forged the acceptance and was subsequently con- of opinion that, although the defendants, by not invicted of that offence. Upon that transaction se- dorsing or guaranteeing the instrument, were not reparate notes passed between the plaintiffs and de-sponsible to the plaintiffs for the solvency of any of fendants and between the defendants and Anderson; and a different rate of discount was charged. The plaintiffs charged the defendants 5 per cent, discount, and the defendants charged Anderson 6 per cent. discount, and a half per cent. commission. Under these circumstances the learned judge left to the jury the question whether the plaintiffs dealt in the transaction with the defendants as principals or only as agents for Anderson, telling them that if they thought that the defendants were principals in the transaction they were liable to repay the plaintiffs, in consequence of the failure of consideration, the bill having turned out to be a forgery and worthless. The jury found for the plaintiffs, damages 30007.

the parties to it, yet they were responsible for the genuineness of the instrument. They undertook that it was such an instrument as it purported to be. It purported to be an acceptance of Van Notten and Co.; and upon that the plaintiffs relied; but that supposed acceptance was a forgery; and there was no real remedy against Anderson upon the bill, which was in fact entirely worthless. The consideration therefore failed, and the plaintiffs are entitled to recover.

Thursday, Nov. 9.

Rule refused. (a)

Ex parte AMY LONG.

Friendly Societies Act-Dispute between the society and one of its members-Arbitration-Award-Erroneous decision-Jurisdiction of justices.

Under the Friendly Societies Act (4 & 5 Will. 4, c. 40, s. 7), justices have no jurisdiction to decide disputes between a society and any of its members, if the rules provide for the settlement of such disputes by arbitration, unless the arbitrators neglect or refuse to make an award; and an erroneous decision by arbitrators duly appointed cannot be treated as a nullity, so as to give the magistrates jurisdiction to hear. Where the rules required that a member shoud be sum

moned before expulsion, and the affidavits stated that the complainant had been expelled without any sum

mons:

Held, that this was no ground for an application to justices, after an award made by arbitrators who had heard and decided upon the objection.

Bramwell now moved for a rule for a new trial, on the ground of misdirection, and that the verdict was against the weight of evidence. 1. As to the evidence the fair inference from the dealings between the parties, was that the defendants were only principals when they indorsed or guaranteed; and although the question was left in unobjectionable terms to the jury, the opinion of the judge was so strongly expressed that the jury could not find otherwise. [Lord CAMPBELL, C.J.-The jury had formed a very strong opinion, quite independent of the view I took.] 2. Assuming the defendants to have been principals in the transaction, they were not liable. They can only be taken to warrant that which may presumably be known to them, viz., the genuineness of the last indorsement. They had no more means of knowing whether Van Notten's acceptance was forged than the plaintiffs had; and where a specific bill is sold there is no warranty of the genuineness of every signature Crompton Hutton moved for a rule under the Jusupon it; but the doctrine of caveat emptor applies. tices Protection Act (11 & 12 Vict. c. 44), calling Gompertz v. Bartlett, 2 Ell. & B. 849, is distinguish-upon Mr. Jardine and the United Kingdom Benefit able, because there the bill sold as a foreign bill did Society to show cause why the former should not hear not answer that description. So if a forged bank and determine a dispute between Amy Long, widow note was sold as a bank-note it would not answer the of Charles Long, and the society. The case was one description, and there would be a failure of consi- of great hardship. Long became a member of the deration; and upon that principle Jones v. Ryde, society in 1841, and in the autumn of 1853 he received 5 Taunt. 488, and Young v. Cole, 3 Bing. N. C. 724, a letter from the secretary informing him that his were decided. In all these cases it was the same name had been erased for a breach of the 11th rule, thing as if a bar of brass was sold as a bar of gold, which provided that any member who was found as was said by Lord Campbell, C.J. in Gompertz v. transacting business for profit or reward whilst he was on the fund of the society should be liable to expulsion. The 32nd rule, however, required that before the expulsion of a member he should be summoned; and no summons was ever served upon Long. His wife was a laundress; and the cause of expulsion was, that whilst he was receiving pay from the funds of the society he had on one occasion wheeled a barrow containing linen for a quarter of a mile. On the 24th April in the present year Long died; and on behalf of his widow the case was taken up by her master, who wrote to the secretary, and after some correspondence applied for an arbitration. An arbitration accordingly took place, and an award was made in favour of the society; but the question was whether that was not a nullity on the ground that it was improperly and corruptly made. First, there was no evidence that Long was working for profit. [Lord CAMPBELL, C.J.

Bartlett. But the distinction here is that the bill was not sold as a genuine bill; nor indeed was it altogether worthless. Anderson's indorsement was genuine, valeat quantum.

COLERIDGE, J.-I think that the rule ought not to be granted on either ground. As to the verdict being against the weight of evidence, the learned judge is quite satisfied with the verdict; and the distinction alluded to between the bills which the defendants indorsed or guaranteed and those which they did not, has reference to the solvency of the parties, not to the genuineness of the instruments. There was clearly abundant evidence that the defendants meant to make themselves liable as principals in the transaction. The separate rates and distinct rates of discount, show

that there were two separate transactions—one between the plaintiffs and defendants, and the other between Anderson and the defendants. Upon the point of misdirection, the question is, what is the extent of the vendor's liability upon the sale of a specific bill; and that seems to me to rest upon very much the same principle as the cases referred to of the bar of gold, or the forged Navy bill. When the vendor offers

(a) On a subsequent day Bramwell applied for leave to

appeal under sect. 35 of the new Procedure Act; and the court expressed its disposition to grant the leave, as the point had been reserved at the trial, but was understood to say that it would take time to consider whether there should not be a rule to show cause,

Lord CAMPBELL, C.J.-I regret to say that no ground has, in my opinion, been made out for our interference; and we must not allow hard cases to make bad law. Here the award is not shown to be a nullity; though the arbitrators may have decided contrary to our view of the merits, they have not acted without jurisdiction. The strongest point is, that Long was expelled without being summoned; but it appears that the arbitrators heard and considered this objection, and ruled that he was properly expelled notwithstanding. If mala fides had been proved against the arbitrators, the award would not have been binding, but there is no sufficient evidence of that.

COLERIDGE, J.-We ought not to listen to the allegation of hardship in a case of this kind, where the only question is whether there has been an award final and binding between the parties. The utmost that can be said here is, that the arbitrators have wrongly decided; and even as to that it must be remembered that we are now judging upon ex parte statements alone. In R. v. Grant, the court considered the ques

tion to be whether a valid award had been made or

not; but there the arbitrators had refused to hear the

evidence on one side altogether. In the present case they have heard both sides and finally determined the dispute.

WIGHTMAN and ERLE, JJ. concurred.

Friday, Nov. 10.

Rule refused.

WILLIAMS AND WIFE . SMITH.

Infant-Necessaries· Acknowledgment by of debtStatute of Limitations.

An infant during minority may acknowledge in writing, under Lord Tenterden's Act (9 Geo. 4, c. 14, s. 1), a debt for necessaries, so as to defeat the operation of the Statute of Limitations.

Declaration for goods sold and delivered, work and labour done, and materials supplied.

Plea-Statute of Limitations. Replication-That defendant by letter or memorandum in writing acknowledged the debt, and thereby promised to pay.

Rejoinder-That the defendant at the time of such acknowledgment was an infant.

Surrejoinder-That the goods, &c., in respect of which such acknowledgment and promise to pay was made, were necessaries.

Demurrer to the surrejoinder.

Kerr in support of the demurrer.-This surrejoinder is bad. The acknowledgment by the infant creates a new contract; and an infant cannot contract. An infant cannot state an account even for necessaries : (Ingledew v. Douglas, 2 Stark. R. 36.) In Oliverson v. Woodroffe, 4 M. & W. 650, it was held that an infant could not give a cognovit to confess an action for necessaries. [COLERIDGE, J.-The law implies a promise even from an infant to pay for necessaries; why, then, may not an infant make an express promise to pay for them? WIGHTMAN, J.-If an infant admits that goods supplied to him are necessaries, cannot such admission be used against him?] The ratification and promise after full age to bind an infant must be given voluntarily, and with full knowledge that he was discharged by nonage: (Harmer v. Killing, 5 Esp. 102, Alvanley.) An infant cannot be prejudiced by his own laches: (Bac. Abr. "Infant,', G. H.) A part payment by an infant, it would seem, does not amount to a confirmation of the residue of the demand: (Thrupp. v. Fielder, 2 Esp. 628.) The case

of Williams v. Moor, 11 M. & W. 265, was then referred to.

The other side was not called upon to argue. Lord CAMPBELL, C.J.-I am of opinion that the surrejoinder is good. The debt being for necessaries, any promise by the infant within six years of action brought is sufficient to create a liability to pay it. Generally speaking an infant cannot bind himself to pay by his promise; but there is an exception in the case of necessaries, and for necessaries an infant may contract. He may promise to pay at the time of contracting the debt, or the next day, or the next year; and I can see no reason why he may not therefore promise to pay after the lapse of six years.

COLERIDGE, J.-The defendant was liable in the first instance to pay this debt, and whilst he continued an infant he made such a written acknowledgment as satisfies Lord Tenterden's Act, to take the case out of the Statute of Limitations. I do not see why, if the infant could contract in the first instance, he should not be able during his minority to acknowledge such contract. And if he is sued before the lapse of six years from the original contract, can the plaintiff not give evidence of any acknowledgment of the contract by the infant within that time? If the plaintiff can, why may he not give evidence of an acknowledgment after the six years, to take the case out of the Statute of Limitations?

WIGHTMAN, J.-It seems to me that any acknowledgment of the contract made within six years might have been given in evidence; and that it follows from that, that any acknowledgment made at any time may be given in evidence.

ERLE, J.-The incapacity of infants to contract does not extend to necessaries; and the reason is said to be, because it is for their benefit that they should have full capacity to contract for necessaries. It seems to me that it is greatly for their benefit also that they should have full capacity to renew such contracts, because the creditor may be induced thereby to give them further credit for necessaries.

Judgment for the plaintiff.

ment of 26517. with interest to James Robinson within eighteen months, and that the plaintiff had been called upon and required to pay James Robinson's debt, and had paid on account of it a sum of 1000l., and given promissory notes, not due at the commencement of the action, for the residue, viz., 23512., the total amount of debt and interest being 33517. At the trial, before Erle, J., at Lewes, the verdict passed for the plaintiff for that amount; but a rule nisi had since been obtained to reduce the damages by the amount covered by the outstanding promissory notes, or to stay execution until the notes had become due.

M. Chambers, Bramwell, and Bovill, now showed cause, and relied upon Loosemore v. Radford, 9 M. & W. 657; Warwick v. Richardson, 10 M. & W. 284; Lethbridge v. Mytton, 2 B. & Ad. 772; Carr v. Roberts, 5 B. & Ad. 78; Smith v. Howell, 6 Exch. 730, as showing that the whole amount of the debt which the plaintiff had been called upon to pay was the proper measure of damages.

Shee, Serjt., and Ogle, contrà, attempted to distinguish the cases cited, on the ground that here the defendant was liable as well as the plaintiff to the creditor of the firm, who had compelled the plaintiff to pay; and that therefore, if the plaintiff should not pay the promissory notes when they became due, James Robinson might require the defendant to pay him, and so the defendant might have to pay twice over.

Lord CAMPBELL, C.J.-I think that this rule must be discharged; and that, both on principle and authority, the verdict ought to stand. There is an absolute covenant by defendant to pay on a day certain, which covenant he has broken; and the plaintiff has been called upon to pay the debt. If the plaintiff had paid the whole in promissory notes, could he not have maintained an action at all during the currency of the notes? He certainly could for the breach of covenant. Then what is the measure of damages? No other can be suggested than the amount of the debt, including that for which promissory notes have been given. It is clear that the plaintiff could bring no fresh action for this same breach of covenant when he had paid the promissory notes; and if he cannot recover the amount in this action he cannot be indemnified. It is true that the defendant incurs the peril of having to pay twice; but that arises from his own default in

Plaintiff and defendant, being partners, executed a deed of dissolution of partnership, whereby defendant covenanted to pay and satisfy the debts of the firm within eighteen months, and to indemnify the plaintiff against all costs, losses, damages, claims, or demands, which he might incur or be liable to in respect of those debts. The defendant not having paid a creditor of the firm within eighteen months, the plaintiff was called upon to pay, and did pay part in cash, and gave promissory notes for the residue. In an action by him upon the defendant's covenant, commenced during the currency of the notes:

Held, that the measure of damages was the whole amount of the creditor's demand, including that for which the promissory notes were given.

This was an action on a deed of dissolution of partnership, which recited the existence of a partnership between the plaintiff, the defendant, and Mr. Scott Russell, and that the plaintiff and R. wished to withdraw, and the defendant to continue the business on his own account; and that the firm had certain debts and liabilities, specified in a schedule thereto, including a sum of 26517. due to James Robinson (the father of plaintiff and defendant); and that it had been agreed that all the property of the firm should be transferred to the defendant, and that he should take upon himself the liquidation of the partnership debts and indemnify the plaintiff. The deed carried out that agreement, and contained a covenant by the defendant that he would pay and satisfy all the debts and liabilities of the partnership within eighteen months from the date thereof, and another covenant to indemnify and save harmless the plaintiff against all costs, losses, charges, damages, claims, and demands which he might incur or be liable to in respect of the partnership debts. The declaration alleged a breach in nonpay

upon reason; and there is a superfluity of authority on the same side. The case of Loosemore v. Radford is on all fours with this case.

WIGHTMAN, J. concurred.

ERLE, J.-I also think that the plaintiff is not in a worse position by having given the promissory notes; and I would observe that in Loosemore v. Radford the point of hardship upon the defendant was fully before the court; because they throw out that the plaintiff would hold the money recovered as trustee for the defendant, who might, perhaps, have a remedy in equity against any misappropriation of it.

Rule discharged.

Thursday, Nov. 16. (Sittings in Banco, before Lord CAMPBELL, C.J., COLERIDGE, WIGHTMAN, and ERLE, JJ.)

REG. v. MARSHALL.

Watson, Q.C. (with whom was Wheeler) moved for a rule calling on Thomas Horncastle Marshall, judge of the County Court of Wakefield, to show cause why a criminal information should not be filed against him, upon the ground that, on the 19th Aug. last, he maliciously refused audience to William Shaw, a barrister retained on behalf of the plaintiff in the cause of Furniss v. Hauxwell, then called on for trial in the said court. The learned counsel said, the application was made on the part of Mr. Shaw, who distinctly charged the judge with being actuated by malicious motives in the course which he had pursued. The affidavit of Mr. Shaw set forth that he was called to the Bar in the year 1844, that he was a member of the Northern Circuit and West Riding Sessions, and practised in the County Court of Wakefield, of which Mr. Marshall was the judge. On the 19th Aug. last, having been retained for the plaintiff in the case of Furniss v. Hauxwell,

Mr. Shaw, at the time appointed for the sitting of the court-viz., ten o'clock-entered the court and took his seat in the place assigned to counsel. At half-past ten o'clock the judge entered, and Mr. Shaw, as a mark of respect, rose up. The business of the court then commenced, but the judge, interrupting the business, demanded of James Alfred Shaw, the reporter of the Wakefield Express, why he continued to come into the reporter's box, from which he (the judge) had had him removed twice before? The reporter, who was in no way related to or connected with Mr. Shaw the barrister, then rose from his seat, and the judge went on to ask him if he was the author of a report which had appeared in his (the reporter's) newspaper? The reporter replied that he was responsible for the report, and that it was a true report. The judge retorted that the report was false; that he could give the reporter credit for any amount of ignorance; but that there was more than ignorance in the report-there was malice. The judge then ordered the reporter to leave the box; but the latter refused, alleging that as the court was public he had a right to be there. The judge eventually directed an officer forcibly to expel the reporter from his seat, and to remove him to another part of the court. This was accordingly done, and he was placed in a seat where there was no accommodation for reporting; but he soon after left the court. Mr. Shaw was the only barrister present during these proceedings, but he took no part in them whatever, either by word or gesture. The business of the court then proceeded for a few minutes, when the judge, again interrupting the business, said to the applicant, "Are you, Mr. Shaw, the author of that report ?" Mr. Shaw respectfully rose, and inquired to what report his Honour referred; to which the judge, in a sneering and contemptuous manner, replied, "You know very well what report I mean." The judge after some inquiries of the usher of the court, referred to the case of Hodgson v. Meeson, in the Wakefield Express, and then said, "Now, Mr. Shaw, did you write that report ?" Mr. Shaw, in a respectful manner replied as follows:-"Your Honour, I am astonished at such a question being put to me from the bench; if asked elsewhere, I would have answered; and even here, although I cannot recognise your Honour's right to put it, I will reply to it, if you will be good enough to show me the report to which you refer." The judge immediately replied, "Then you decline to answer my question?" To which Mr. Shaw answered, that he had not so declined. The conversation then ended, and the business of the court was resumed, and continued for about half an hour, till the case of Furniss v. Hauxwell was called on. Mr. Shaw then rose and

said, "I appear, your Honour, in this case as counsel for the plaintiff;" but he was peremptorily interrupted by the judge, who said, "Stop, Sir!" The judge then took a book from his desk, and, after referring to it for a short time, looked at Mr. Shaw, who had been standing during the interval, and the latter, thinking he was to go on, recommenced by saying "As I was about to explain, your Honour, in this case". The judge again vehemently interrupted him by saying, "Did I not tell you to stop, Sir?" Mr. Shaw again stopped, and continued standing for two or three minutes, when the judge said, "I shall not hear you, Sir." Mr. Shaw respectfully asked upon what ground, and the judge replied, "You have declined to answer my question; it is a contempt of court, and I shall not allow you to practise until you answer it. I must not punish the innocent and permit the guilty to escape." Mr. Shaw again tendered himself as the plaintiff's counsel, but the judge refused to hear him, and adjourned the case, in order that other counsel might be retained. Mr. Shaw then returned his brief and left the court, which he had not since attended, though he had been offered several retainers. The applicant stated that, on the occasion in question, as well as on previous occasions, he had conducted himself most respectfully towards the judge, and had never been betrayed into unbecoming conduct or language. He further explained that he had been counsel for the defendant in the cause of Hodgson v. Meeson, tried before the said judge on the 3rd June last, and that, at the request of Mr. John Robinson,

the editor and proprietor of the Wakefield Express, he had furnished for that paper a report of the trial from the notes taken on his brief, and while the facts of the case were fresh in his recollection. He had at the same time directed that the report should be submitted to the reporter and compared with his shorthand notes. He declared that the report so furnished was a faithful and true report. Mr. Shaw stated that, by 15 & 16 Vict., he had a right to practise as a barrister in the Co. C., and that the refusal of the judge to allow him to practise there arose from malicious motives. The applicant had no other remedy, and therefore came to this court.

Lord CAMPBELL said, the charge was, that this gentleman (the Co. C. judge) had misconducted himself in the administration of justice. That was a misdemeanor, and a prima facie case for the interference of this court, and therefore the learned counsel ought to have a rule to show cause. His Lordship added that there might be sufficient ground for an action, but it did not follow that a criminal information ought to issue, unless malice could be established.

BUSINESS.

Rule nisi.

JONES. REECE.-Grove moved on the part of defendants for a rule to quash the certiorari which had been issued in this case, and to issue a writ of procedendo for the purpose of restoring the cause to the Co. C., whence it had been removed. The action was in replevin, but the replevin bond had not been signed, and the plaintiff's attorney had received no instructions. The Co. C. summons was served on

the 3rd Aug., and on the 17th Aug. the case was adjourned to the 17th Sep., when the writ of certiorari was served upon the judge. He referred to sect. 121 of 9 & 10 Vict. c. 95, and Mungean v. Wheatley, 6 Exch. 88. Rule nisi.

MUTRIE . YOUNGHUSBAND.- · Duncan moved to enter a

suggestion under the City of London Small Debts Act, to deprive the plaintiff of costs: (Castrique v. Page, 22 L. J. 145, C.P.) Rule nisi.

COURT OF COMMON BENCH,

Monday, Nov. 6.

(Before JERVIS, C.J., MAULE, WILLIAMS, and CROWDER, JJ.)

LEVERSON v. SHAW.

Costs in the Co. C. between attorney and client-Statute 15 16 Vict. c. 54, s. 1. Until the scale of costs authorised by the above section shall have been made and approved by the judges, the costs of an attorney in the Co. C., as between attorney and client, may be taxed according to the old method of taxing.

This was an action upon an attorney's bill. Plea: never indebted. Verdict for the plaintiff for 247., with leave to the defendant to move to reduce the verdict by 51.

Lush now moved accordingly.-The question arises under statute 15 & 16 Vict. c. 54, s. 1, which authorises the L. C. to appoint five of the Co. C. judges to frame a scale of costs and charges to be paid to attorneys in the Co. Courts, to be paid as between attorney and client, and as between party and party, subject to the approval of three of the judges of the Superior Courts, and enacts, that "the scale of costs and charges so approved shall, after a day to be named by such last-mentioned judges, be in force in every Co. C., and all costs between party and party, and attorney and client, shall be taxed by the clerk of the court; and in no case upon the taxation of the costs between attorney and client, shall any charges be allowed not sanctioned by the aforesaid scale, unless the clerk is satisfied by writing under the hand of the client, that he was agreed to pay such further charges, and no attorney shall have a right to recover at law from his client any costs or charges not so allowed on taxation." No scale of costs has yet been approved of, and it is submitted that until such scale is approved, an attorney cannot recover from his client any costs for work done in a Co. C.

MAULE, J.-Under the Attorney's Act these costs are taxable in a court either of common law or of equity. This act does not take away the right of the officers of those courts to tax, but authorises the officer of the Co. C. to tax after a certain scale

when it shall have been made. Then, until that scale is made, the old method of taxing must continue to exist. Rule refused.

Monday, Nov. 20.

BLOWER v. HASTON.

Special case-Co. C.-Interpleader-High bailiff's costs. A suit of fi. fa. was executed by the high bailiff of the Co. C. of Staffordshire. When he had seized the goods a claim was put in by a third person, and an interpleader summons issued on the application of the high bailiff. The interpleader was determined in favour of the plaintiff in the Co. C., and the judge ordered that the costs of the interpleader proceedings should be paid by the claimant. The goods were sold, and the proceeds were paid into court, and afterwards taken out by the plaintiff in that court. Ile afterwards brought this action for his costs against the defendant, the then plaintiff. Stat. 9 & 10 Vict. c. 95, s. 118, enacts that “the judge of the Co. C. shall adjudicate upon such claim" (on an interpleader summons), "and make such order between the parties in respect thereof, and of the costs of the proceedings as to him shall seem fit, and such order shall be enforced in like manner as any order made in any suit brought in such court." By the 148th rule of practice in the Co. Courts, "where the claim to any goods or chattels taken in execution, or the proceeds or value thereof shall be dismissed, the costs of the bailiff shall be retained by him out of the amount levied, unless the judge shall otherwise direct:" Held that, assuming that the plaintiff could have deducted his costs out of the proceeds, having omitted to do so he had no right of action against the defendant, the plaintiff in the Co. C. for his costs.

Held, also, that such costs are not fees.

This was a special case. The plaintiff was the high bailiff of the Co. C. of Staffordshire, holden at Newcastle-under-Lyne, who, under a writ of fi. fa. issued out of that court under 9 & 10 Vict. c. 95, s. 104, authorising the execution of such writ in a district out of the jurisdiction of the court in which the judgment was obtained, had seized the goods of one Moran to satisfy a judgment obtained against him in the Co. C. of Liverpool. The defendant was the plaintiff in the original suit at Liverpool. After the high bailiff had seized the goods a claim to them was put in by a third party, and the high bailiff obtained an interpleader summons, that the claim might be adjudicated upon. The goods were detained by him till after the trial of the interpleader; that was determined in favour of the defendant, the then plaintiff; and the judge ordered that the costs of the interpleader proceedings should be paid by the claimant. The goods were sold and the proceeds were paid into court, and the money was afterwards taken out by the then plaintiff without deduction having been made by the high bailiff for his costs under the 148th rule of practice, which says that where the claim to any goods or chattels taken in execution, or the proceeds or value thereof shall be dismissed, the costs of the bailiff shall be retained by him out of the amount levied, unless the judge shall otherwise direct. The plaintiff then brought an action for his costs against the present defendant, who had taken the money out of court. And the question for the court was, whether the plaintiff, having omitted to deduct his costs out of the sum levied, could sustain an action for them against the defendant.

H. Mills for the plaintiff.-The plaintiff has a right to fees under the statute of Elizabeth, and may bring an action for them; and the right to deduct them does not take away that remedy. By the 118th section the judge may make such order as to the costs of the interpleader as to him shall seem fit. He ordered the claimant in the interpleader to pay the costs of the then plaintiff. The costs of the high bailiff are part of those costs, and he may recover them from him by action. [MAULE, J.-The 118th section does not impose any duty upon the high bailiff, he may take out an interpleader summons or not, as he chooses.] The 145th and 146th rules show that it is his duty to do so. [MAULE, J.-They do not impose on him any duty.] Sect. 37 gives the bailiff a right to fees generally. The 118th section speaks of the costs of interpleader, and gives the judge the right to say what costs

the one party shall pay to the other; and by the practice of the court the losing party pays the costs of the high bailiff. The officer taxed these costs. [MAULE, J. -Supposing he might have brought an action against Mary Collins. Having paid the money over to the defendant, can he bring an action against her?] He earned his fees, and has a right of action for them. [MAULE, J.-Having paid the money over to the defendant, under what head of money paid can he recover it back?] As fees to which he is entitled.

MAULE, J.-They are not fees at all, but costs which the judge has ordered to be paid by Mary Collins. A fee means something to be paid by one person to another for something done for him. But this would be a fee for something done by the plaintiff as a duty to himself.

Mellish, for the defendant.-First, the defendant is not liable to pay at all. By the 118th section the judge may order that the costs should be paid, or that they should not be paid. He has not ordered the defendant to pay them, and the plaintiff cannot have them from him. Secondly, having paid the money over, he cannot recover it back. The 148th rule cannot give any such right, if it is not given by the Act itself. [He was stopped by the court.]

JERVIS, C.J.-Assuming for the purposes of the argument that the high bailiff might have deducted his costs from the proceeds of the goods, I am of opinion that he, having omitted to do that, and having paid the whole into court, and not having applied to the judge to have the amount of his costs deducted, has no right of action against the defendant. Mr. Mills says the costs are fees to which he had a right, and that that right is not taken away by the 118th section, which authorises the high bailiff to deduct his costs from the proceeds. But they are not fees but costs of doing what he did in executing the writ; and on that ground I decide.

MAULE, J.-Assuming the right of the high bailiff to deduct his costs, if he had done that the court would have dealt with the residue. He has not done so, though knowing all the circumstances of the case. He has not applied to the court, but allowed the court to distribute the money to other persons; and he now seeks to recover his costs from the defendant, the plaintiff in the original suit. This does not come under any of the well-known heads of money had and received to the use of a person, nor under any precedent to that effect, and he cannot say that there was any implied undertaking making it so. These costs are no more fees than they are rent or interest of money. It appears to me a desperate shift to get money, to which, if the plaintiff had once a right, he has left the time for enforcing it go by. WILLIAMS and CROWDER, JJ. concurred.

COURT OF EXCHEQUER.

June 7 and 16. CONGREVE v. EVETTS.

Bill of sale-Future crops-Execution creditor's rightInsolvent-5 & 6 Vict. c. 116-7 & 8 Vict. c. 96 8. 21.

By a bill of sale under seal, dated Jan. 1848, a debtor assigned to the plaintiff all his household goods in and about his dwelling-house, and all his live ana dead farming stock, crops of grain, and the whole of his personal estate in and about the same, and upon the said farm and land, to hold as a security for the repayment of certain sums already advanced, and as may thereafter be lent, not exceeding in the whole 20001., with a proviso that it should be lawful for the plaintiff at any time to seize and take possession of the said household goods, live and dead farming stock, crops of grain, and other effects which should or might from time to time be substituted in lieu of the said stock, crops, and implements of husbandry thereby assigned or any part thereof, or which should for the time being be found in or about the house, farm, lands, and premises, either in the lifetime of the debtor or afterwards, and to sell same, and out of the proceeds to pay all costs, &c., and moneys due to the plaintiff. Additional advances were made, and on 21st Feb. 1849, 12977. being due to the plaintiff, he seized and