1819.

Wednesday,
Feb. 10th.

In Michaelmas

Term the Court LAS

ordered an attachment against the sheriff to

stand as a security for the debt and costs in the

LEE against CARY.

LAST Term it was ordered, that the attachment which issued against the sheriff in this cause should stand as a security for the debt and costs, it appearing on that occasion that the plaintiff had lost a trial in consequence of the defendant's irregularity. On a former day in this Term, Holt obtained a rule, calling on the plaintiff to shew cause why so much of the rule above mentioned as related to the attachment standing as a security should not be discharged, the application havthe attachment ing been made at the instance of the sheriff.

cause, the sheriff having had re

gular notice of

the attachment.

In this Term he applied to dis

charge that part

of the rule as to

Reader now shewed cause, and objected that the application was too late, inasmuch as it was the duty of the sheriff to have appeared last Term, when the Court ordered the attachment to stand as a security. This had been a regular attachment; and in last Term Espinasse appeared of counsel for the defendant, and the Court on that occasion decided, that as the plaintiff had lost a trial, it was but reasonable that the attachment should stand as a security for debt and costs. If the sheriff had any objection to urge to this proceeding, it was his duty to have applied to the Court in that Term to set aside the attachment. The sheriff could not now call upon the Court to re-argue the question as to the irregularity of the attachment. There was no pretence for saying that he was taken by surprise by the course which the proceedings took last Term, be

(a) When a trial has been lost, the Court will not set aside an attachment obtained against the sheriff, but direct it to remain in the office and stand as a security to the plaintiff for the sum recovered. Gravet v. Williams, 4 T. R. 352. Tidd, 6th ed. 307. It is incumbent on the plaintiff to shew by affidavit in what manner the trial has been lost, by proving the date of the delivery of the declaration, &c. The King v. The Sheriff of Surry, 5 Taunt. 606.

cause it was distinctly sworn upon the affidavits, that when the attachment was served the officer who made the present application was present in the sheriff's office, and he was told that the sheriff was attached. Under these circumstances the sheriff came too late, and therefore the rule must be discharged.

Holt, in support of the rule, urged, that as the sheriff was no party to the rule made in last Term, he could not be bound by it, and therefore he was at liberty now to come and set that part of it aside which affected his security.

ABBOTT C. J. I know of no instance of a rule being opened in this way. When the case was before the Court in last Term, there was nothing to shew that the attachment was irregular. It appears that the sheriff had had regular notice of the attachment, and therefore if he had any thing to urge against it, he ought to have come to the Court as soon as possible.

BAYLEY J. The attachment was granted on the 18th of November, and the sheriff does not apply to set it aside until this Term, and that is clearly too late. It is not suggested that the former application to the Court was made without his privity or consent-he does not swear that he did not know of any such application being made. Under these circumstances, the Court cannot now grant him any relief.

HOLROYD J. and BEST J. concurred.

Rule discharged with Costs.

1819.

LEE

against

CARY.

1819.

Wednesday,
Feb. 10th.

Where a second
application is
made to put off

a trial, the Court
will not compel
the defendant
to pay the money
into Court or
give security. (a)

ABRAHAM against COATES.

POLLOCK shewed cause against a rule ob

tained by Barnewall to put off the trial of this cause, and contended that as this was a second application (which was admitted) the defendant ought to pay money into Court, or give security.

the

BAYLEY J. referred to the Master, and decided that by the practice the plaintiff was not entitled to the terms he asked for; and

The rule was made absolute.

(a). As to the causes and manner of putting off a trial, see Tidd, 6th ed. 826-9.

Wednesday,
Feb. 10tb.

Sham pleas tendering issues which required

VINCENT Gent. against GROOME.

DECLARATION on assumpsit. Plea non assumpsit to the second and subsequent counts, concluding to different modes the country. Plea to the first count of a set-off on a

of trial, and

entrap the plain

pleaded so as to recognizance alleged to have been acknowledged by the plaintiff to the defendant in the Court of Common Pleas, with a prout patet of a record in this Court.

tiff, set aside with

costs to be paid by the attorney, though he was expressly instructed by the defendant to

plead a dilatory plea.

› Chitty on a former day obtained a rule for the defendant and his attorney to shew cause why the plaintiff should not be at liberty to sign interlocutory judgment as for want of a plea, and why the defendant or his attorney should not pay the costs of the application. He now contended, upon the authority of the cases of

Thomas v. Vandermorlen, 2 Bar. and Ald. 197. Bentley v. Goodlake, id. 199. that this sham plea was pleaded contrary to the practice of the Court; that it not only occasioned two issues, the one to be tried by a jury, and the other by the record, but was so framed as to endeavour to entrap the plaintiff by averring the existence of the record in this Court, when it was previously alleged that it was a recognizance acknowledged in the Court of Common Pleas.

D. Pollock shewed cause, and admitted that the plea could not be supported, but produced an affidavit of the defendant, which stated that his attorney had on former occasions pleaded dilatory pleas for him, and that he desired him to adopt the same course in the present action. It was contended, therefore, that the attorney having framed the plea according to his client's instructions, he ought not to be made personally liable for the costs, and so much of the rule as related to him ought to be discharged. But

The COURT said, this is a very improper plea, and the attorney ought to pay the costs.

1819.

VINCENT

against GROOME.

Rule absolute.

WILLIS against OSBORNE.

Wednesday,
Feb. 10th.

ESPINASSE on a former day obtained a rule calling Where a cause

has been referred to arbitra

upon the defendant to shew cause why so much of the award made in this cause, which related to the costs tion, and the

costs are directed to abide the

event, that must be taken to mean the legal event; and, therefore, where the arbitrator found no damages for the plaintiff in an action of trespass to land, and directed both parties to pay their own costs, it was held that the plaintiff was entitled to no costs, because the legal event of the reference would not carry costs. (a)

(a) Ward v. Mallander, 5 East. 489. where a verdict is taken for 10l. in trespass subject to an award of damages, and the costs to abide the event, if

1819.

WILLIS against OSBORNE.

of the action between the parties should not be set aside. It appeared that the action was in trespass, for entering the close of the plaintiff, but the parties agreed to refer the cause to arbitration, and by the terms of the submission it was directed that the costs should abide the event. The arbitrator had awarded, that the defendant had trespassed on the plaintiff's land, and had directed the defendant to pull down a chimney he had erected thereon; but he had not awarded any damages to the plaintiff, inasmuch as it appeared that each party had been respectively trespassing on the other's premises, and had directed each party to pay their own costs, and that each should pay a moiety of the costs of the award. Under these circumstances, it was contended that as the costs were to abide the legal event of the arbitration, the plaintiff was entitled to the costs of the cause, notwithstanding this award.

Chitty now shewed cause against the rule, and said that as this was a reference of all matters in difference between the parties, it was competent for the arbitrator to direct how the costs should be paid. The costs were not to be regulated by the event of the particular cause, but by the result of the inquiry into all the matters in dispute between the parties. The arbitrator had in fact decided nothing in favour of the plaintiff, and therefore as he was entitled to no damages, he was entitled to no costs. He referred to Swinglehurst v. Altham (a) as decisive of this case.

the arbitrator find less than 40s. damages the plaintiff cannot have his costs, though it be also found that the trespass was wilful, and that the defendant should pay the plaintiff his costs, for, costs being directed to abide the event, means the legal event, and the authority of a Judge to certify for costs where the trespass is wilful (see 8 & 9 W. 3. c. 11. s. 4.) is not transferred to the arbitrator under such a rule of reference.

(a) 3 T. R. 138.