the fiat being granted the sheriff would be liable to an action, for it would relate back to the time when the act of bankruptcy was committed. He did come on the 16th April, which was the second day of term, and as early as he could with safety come to the Court. But the sheriff's affidavit stated, that from the 2nd February, he had been led to believe that negotiations for the settlement of the respective claims of the parties were going on. If the execution creditor was anxious to have the proceeds of the goods, he should have ruled the sheriff to return the writ, and then have issued a venditioni exponas, and then he might have had the proceeds, or the sheriff the opportunity of applying to enlarge the time for making his return, till assignees were appointed. From the 2nd February, the sheriff had been constituted the agent of the parties, and therefore he was entitled to receive his expenses of keeping possession since that period. In Dabbs v. Humphries (a), the Court held that the sheriff was entitled, where he applied under the Interpleader Act, to such expenses as he might incur as agent of the parties after his application. WILLIAMS, J.-It appears to me that the present case is distinguishable from that of Cook v. Allan. The question is, whether such delay has taken place on the part of the sheriff as disentitles him to relief under the Interpleader Act. Sufficient excuse has in my opinion been given for not coming sooner to the Court. The appointment of assignees appears to have taken place subsequent to Hilary Term, and therefore I think his delay is explained. The present rule, therefore, must be enlarged, and an issue directed to try whether the goods seized are the property of the claimant or the defendant. (a) Ante, p. 377. Rule accordingly. 1835. BARKER บ. PHIPSON. 1835: Ex parte THORpe.` If the agent of KNOWLES applied to re-admit an attorney, without a an attorney neglect to take out his certifi cate, and the latter continues in ignorance of the neglect to be re-admitted on payment of a nominal fine, and the arrears of duty. term's notice. The facts disclosed in the affidavit on which he moved stated, that the applicant had been regularly admitted, and had taken out his certificate for a number of years. His last certificate expired in the month practise, he may of November, in the year 1833. He carried on his business in the county of Hertford. Previous to the month of October, 1833, he disposed of his business. In the year 1834, before the month of October in that year, being desirous of resuming his business, he gave directions to his agents in town to take out his certificate, and to continue so to do regularly. This, he supposed they had done, until within a few days, when he discovered that they had neglected so to do. The present application therefore was, that he might be re-admitted without a term's notice. During the period which had elapsed since the expiration of his last certificate, he had not practised, except by preparing a lease, for which he had made and should make no charge. It was to be observed, that but for this neglect of the agent, the attorney would never have been off the roll. He cited Ex parte Dent (a), where the circumstances were similar to the present, with the exception that there the attorney had continued to practise during the uncertificated interval. In that case the Court allowed him to be re-admitted, without a term's notice. WILLIAMS, J.-I think, on the authority of that case, if the attorney pays 20s. fine, and the arrears of duty, he may be re-admitted without a term's notice. Re-admitted accordingly. (a) 1 B. & Ald. 189. 1835. STRAFORD v. Love. ERLE shewed cause against a rule nisi obtained by W. If, instead of Clarkson, for paying out of Court to the plaintiff the sum of 1607. 6s. 10d., paid into the hands of the sheriff of Middlesex, in lieu of bail, under the 43 Geo. 3, c. 46, s. 2, and by him brought into Court; and also such sum as the Master should allow out of the sum of 10%., also brought into Court, to answer the costs of the action. The supposed ground of this application was, that the defendant had not put in and perfected bail in due time, and therefore the plaintiff was entitled to have out of Court the money deposited, together with his taxed costs, to be deducted from the 10%. also paid in by the defendant. It was important in the present case to look to the dates of the proceedings. The defendant was arrested by virtue of a writ of capias on the 7th of March, and the sum sought to be recovered, together with 10%. for costs, was paid into the sheriff's hands. Pursuant to the command contained in the writ of capias, bail ought to have been put in on the 14th. The 15th was a Sunday, and the plaintiff would not be able to except until the Monday. He therefore could not compel a justification at the earliest until the 18th. The time for perfecting bail must consequently be taken to have been on the 18th. On that day, the defendant's attorney sent a letter to the plaintiff's attorney, proposing terms of arrangement between the parties. A correspondence then continued down to the 24th, when a letter was sent by the plaintiff's attorney, breaking off all further communication on the subject. On that day, the defendant paid into Court the additional 107. mentioned in the 7 & 8 Geo. 4, c. 71, s. 2, to meet the further costs in the suit, the sheriff in the mean time having paid in the deposit. Under these circumstances, the plaintiff had applied to have his debt and taxed costs out of Court, as it was said that the putting in bail, posits the amount of the debt, with 107. for costs, pur suant to the 43 Geo. 3, c. 46, s. 2, he is not bound to pay in the additional 10., pursuant to the 7 & 8 Geo. until the last day allowed for perfecting spe cial bail. 1835. STRAFORD V. Love. 10%. ought to have been paid in on the 14th, the day on which the bail was to be put in, according to the requisition of the capias. But, although the language of the writ was in those terms, yet "putting in" did not necessarily mean justifying on the particular day in question. The defendant must be entitled to have time to perfect his bail according to the practice of the Court. If the defendant would have time to justify after the time of putting in bail, he would have the same time to pay in the 107.; as the payments under the 43 Geo. 3, c. 46, and 7 & 8 Geo. 4, c. 71, must be viewed in the same light as bail. The language of the two acts of Parliament evidently treated them so. In Newman and Another, Assignees, &c. v. Hodgson (a), which was an application by the plaintiff to take out of Court a similar deposit to the present, the Court said, "This is analogous to the case of an application to stay proceedings commenced upon a bail-bond, where bail has not been perfected in due time." Again, in Rowe v. Softly (b), the marginal note of the case was, "When money is paid into the hands of the sheriff in lieu of bail, the defendant has, under the 7 & 8 Geo. 4, c. 71, till the time for perfecting special bail, for giving notice of his intention that the money shall remain in Court to abide the event of the suit." There, the language of Lord Chief Justice Tindal was very important. In speaking of the 7 & 8 Geo. 4, c. 71, s. 2, he said, "The act is remedial; it extends the provisions of the 43 Geo. 3, c. 46, which had been found beneficial in its operation, and the words used 'within such time as he could have been required to have put in and perfected special bail in the action, according to the course of the Court,' comprehend the whole time till the last day for perfecting special bail; and we put this construction upon it, the rather because it has no tendency to delay the plaintiff, for he could not declare in chief till (a) 2 B. & Adol. 422. (b) 6 Bing. 634; 4 Moo. & Payne, 464. the time for perfecting special bail had expired." Under these circumstances, it was contended that the defendant had paid in the second 107. in due time, and, therefore, that he had a right to have the money continued in Court, in order to try the cause upon its merits. W. Clarkson supported the rule, and submitted that the defendant was bound according to the exigency of the writ of capias, within eight days after the arrest, inclusive of the day of the arrest, to put in special bail, which must mean to perfect it by justification. That such was the meaning of the phrase " put in" in the Uniformity of Process Act was clear from the case of Rex v. The Sheriff of Middlesex, in a cause of Wollaston v. Wright (a), where it was held that a defendant must justify as well as put in bail in vacation, according to the 2 Will. 4, c. 39, s. 11, though he is arrested between the 10th August and the 24th October. The words of the section referred to in that case were, "special bail may be put in by the defendant in bailable process," during the vacation. In that case, the Court was referred to the language of the writ itself, as well as the third warning attached to it. The words of that warning were, "if a defendant, having given bail on the arrest, shall omit to put in special bail as required, the plaintiff may proceed against the sheriff, or on the bail-bond." The Court was, however, of opinion that when the act enabled the defendant to "put in" bail during the vacation, it required that those bail should be justified also. Now, the defendant in the present case had not done that which was equivalent to justifying bail on the day which the writ required, and, therefore, the plaintiff was entitled to have the money out. He also cited Geach v. Coppin (b), where it was decided, that if a defendant deposits money in the hands of the sheriff, pur 1835. STRAFORD บ. LOVE. |