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of their own, were to give a certain interest to sub-purchasers. There was no evidence to shew that the plaintiff was to be a contributor to this purchase money.
HOLROYD, J.-It was entirely collateral.
LITTLEDALE, J., concurred.
Rule refused (a).
(a) See Vice v. Lady Anson, ante, 113; Milburn y. Codd, ante, 226.
REEVES V. SLATER, Esq.
wherein he is Judgment is signed, and a fi. fa. issued in the wrong
CASE, for a false return of nulla bona to a writ of fieri ing his initials, facias, whereby the sheriff of Sussex was commanded to executes a levy 2007. debt, and 65s. damages, recovered by plaintiff attorney, against John Stone Lundie. The first count charged that defendant, as sheriff, had seized goods of Lundie to the value indorsed on the writ. The second stated, that Lundie had goods within the bailiwick, of which defendant might have levied the amount: Plea, not guilty. At the trial before Littledale, J., at the last Spring assizes for the county of Sussex (a), it appeared that the judgment against Lundie had been entered up on a warrant of attorney, signed J. S. Lundie; but in the body of which he was named, as in the judgment, and fi. fa., John Stone Lundie.
The sheriff had seized goods under the fieri facias to the amount indorsed, viz., 1781. 17s., and had retained the possession for eighteen days, at the expiration of which, he quitted possession in consequence of the plaintiff's refusing to indemnify him against a claim set up by the trustees of Mrs. Lundie's marriage settlement, which claim was not established at the trial. It ap
(a) Counsel for the plaintiff, for the defendant, Taddy, Serjt., Marryat, Gurney, and Comyn; and Bolland.
sheriff seizes, but afterwards.
abandons the possession, in consequence of the plaintiff's refusing to indemnify
him against a claim of pro
perty set up by
a stranger :
Held, that the
peared, however, that the real name of the original defendant was not John Stone Lundie, but John Stow Lundie. It was objected that the allegation, that the defendant had seized, or might have seized, the goods of John Stone Lundie, was not proved, inasmuch as it did not appear that any person of that name had goods within the bailiwick. The learned Judge overruled the objection, and a verdict was found for the plaintiff.
In last Easter term, Bolland obtained a rule to shew cause, why the verdict should not be set aside, and a new trial had; and he referred to Morgans v. Bridges (a).
Marryat, Gurney, and Comyn, now shewed cause. After judgment the party can take no such objection. This distinction is settled by many authorities. Crawford v. Satchwell (b), the plaintiff brought trespass and false imprisonment, by the christian name of Archibald. The defendant justified under a capias ad satisfaciendum upon a judgment against Arthur, and averred that the plaintiff in this action was the same person who was sued by the name of Arthur. And on demurrer, the Court held it a good plea, the defendant having missed his time for taking advantage of the misnomer, which should have been by pleading it in the first action; saying that in the case of a bond given in a wrong name, the party must be sued by that wrong name, and the execution must pursue it. So, in Smith v. Patten (c), the Court refused to set aside proceedings after interlocutory judgments, and a writ of inquiry, although the defendant had remained wholly passive during the proceedings. Here, though the original defendant did not write Stone at the bottom of the warrant of attorney, he adopted that name by executing the instrument. In Morgans v. Bridges, one brother was taken under a ca. sa. by the (c) 6 Taunt. 115.
(a) 1 B. & A. 647.
name of the other; and though it was stated to the sheriff that the party taken was the real debtor, the sheriff had no means of ascertaining that fact, and the plaintiff refused to indemnify him. Here no such point was taken by the sheriff; he entered and afterwards abandoned the possession he had taken, upon a totally distinct ground. In Gould v. Barnes (a ), it was held, that if a person enter into a bond by a wrong christian name, he should be sued on the bond by such name: and that a declaration against him by his right name, stating that he executed the bond by the wrong name, is bad. That case shews clearly that neither the defendant in the original action, nor the sheriff, can take the objection. The writ necessarily followed the judgment; it would have been bad if it had been against John Stow Lundie, the name in the judgment being Stone. They also referred to Shadgett v. Clipson (b); and Cole v. Hindson (c), which were cases upon mesne 'process, and turned upon the form of pleading. Here the defendant was estopped, and therefore the sheriff was estopped.
Taddy, Serjt., and Bolland, contrà.-The question is, not whether the sheriff might have executed the writ, but whether he was bound so to do. He has not executed the writ. [Bayley, J. You have begun to execute, but you refuse to proceed upon a different ground]. The difficulty would be the same with a name wholly different. The return made by the sheriff is true, and there were no goods in his bailiwick of the person described in the writ of fieri facias; if a defendant suffers judgment by a wrong name, how is the sheriff to know it? [Lord Tenterden, C. J. Here the sheriff did act, and retained possession under the writ for eighteen days. Could Lundie have maintained an action against the sheriff for that entry? Bayley, J. It might have been different if the
sheriff had refused to take the goods of John Stow Lundie without an indemnity]. The sheriff would have to prove identity. [Bayley, J. That is so in every case]. In Morgans v. Bridges (a), the question was, whether the sheriff was justified in letting the defendant go, after he had taken him, and the Court held that the sheriff was at liberty to take that course. [Bayley, J. There the sheriff was told that he had taken the wrong man, and the plaintiff refused to indemnify him. In Cole v. Hindson (b), the distinction was taken between an arrest upon mesne process, when the defendant was not too late to plead in abatement. The sheriff is protected in the one case, and not in the other.
Lord TENTERDEN, C. J.-The distinction between mesne process and process of execution, is decisive of this case. The particular facts of this case are as strong against the sheriff as can be. He should have taken his stand at first, and have examined whether the judgment was in the same name; because if the judgment was in the same name, the execution was regular.
BAYLEY, J.-Why should the sheriff be allowed to take the objection where the party himself is estopped? In every case the sheriff is bound to ascertain whether the party whose person or goods he takes, is the party against whom judgment was given.
HOLROYD, J., and LITTLEDALE, J., concurred.
(a) 1 B. & A. 647.
(c) And see Mich. 27 E. 3, fo.
Rule discharged (c).
Salk. 310, 4th point; Hyckman v.
DAME ANN FREDERICA ELIZABETH LE FLEMING v. SIMPSON.
Where, upon the plaintiff's evidence, the judge intimates a strong opinion in favour
TROVER, for oak trees. Plea, not guilty.
(a) Counsel for the plaintiff, Courtney and Aglionby; for the defendant, Blackburne, and T. Clarkson.
(b) The wife had been admitted as devisee of her father, the preceding customary tenant.
(c) It does not distinctly appear from the evidence in this cause whether the customary estate in question is held of the manor, in which case the freehold is in the tenant, and the presumption as to the right of the timber, would be in his favour; or whether, as is usually the case with respect to the customary freeholds in the northern border manors, it is within and parcel of the manor, in which case the freehold is in the lord, and the presumption as to the right of the timber, would be in the lord's favour. As to the leading distinctions between these two classes of customary freeholds, see Manning's Exch. Prac., 2nd ed. Revenue Branch, 42, 359. See also, 12 Lib. Ass. fo. 35, pl. 18;
Mich. 14 H. 4, fo. 1, pl. 2; Fitz. Auncien Demesne, pl. 33; Coke, Copyholder, 57; Co. Litt. 59 b; Sir Fra. Moore, 588, pl. 796; Crowther v. Oldfield, 1 Lutw. 125, 2 Lord Raym. 1225, 1 Salk. 364; Oliver v. Taylor, 1 Atk. 474; Glover v. Cope, 1 Shower, 284; Fenn v. Mariott, Willes, 430; Duke of Somerset v. France, 1 Stra. 654; Fortescue, 41; Hussey v. Grills, Ambler, 301; Stephenson v. Hill, 3 Burr. 1273; Vaughan v. Atkins, 5 Burr. 2766; Burrell v. Dodd, 3 B. & P. 378; Doe v. Huntingdon, 4 East, 271; Roe v. Vernon, 5 East, 51, 1 Smith, 318; Doe v. Danvers, 7 East, 299; Brown v. Rawlins, ib. 409; Roe v. Briggs, 16 East, 406; Doe v. Jackson, 2 D. & R. 514, 1 B. & C. 448; Gilb. Tenures, 312, 313; Harg. Co. Litt. 59 b. note, 400; 1 Tho. Co. Litt. 658, note (E); 2 Tho. C. L. 624. And see the pleadings in 9 Wentw. 124, (Manor of Natland in Kirby Kendall).
of the defen
dant, upon a point decisive and in conse
of the cause,
quence of such intimation, the defendant's counsel omits
to call evidence in support of a different point
intended to be
raised by way