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1835.

will afford no encouragement or assistance to one who seeks to disturb an antient possession. An amendment by the tenant stands upon a very different footing. On payment of costs, we think the tenant in this case ought to be permitted to withdraw his demurrer and plead de novo.

Rule accordingly.

TWINING

Dem. LOWNDES

Ten.

become attor

GREEN v. GLASBROOKE.

Friday,

June 12th. A writ of fi. fa. was issued in this cause, indorsed to levy The plaintif's 4501. 158. Under this writ the sheriff seized property of attoredes having the defendant to the value of 3131. 11s., at which sum the for him, and landlord agreed to purchase it, the parties consenting to nies for the dededuct therefrom 961. 4s. 6d., for rent and delapidations. dulently pro

fendant, frauThe net proceeds, after paying the sheriff's expenses, in

cured the sher1931. 4s. 6d., were paid over to the plaintiff's attornies. a fi. fa. a sum

larger than that In September, 1834, the plaintiff paid his attornies all actually levied costs due to them, and obtained a judge's order requiring for to the plain

and accounted them to deliver up to him the judgment paper and fi. fa. tiff

. The court in this cause. This order was not complied with. In of the attornies) September, 1835, the plaintiff's late attornies, then act- turn to be ing for the defendant, without apprising the under-sheriff amended ac

cording to the of the fact of their being no longer attornies for the plain- fact. tiff, procured him to indorse on the fi. fa. that the sheriff had levied 3131, 11s., and had accounted for the same to the plaintiff after deducting sheriff's expenses; although the undersheriff at the time suggested to them that the return should state, according to the fact, a levy of 2171. 6s. 6d. The plaintiff having commenced a second action to recover the balance due upon the former judgment.-

ordered the re

Talfourd, Serjeant, on a former day, obtained a rule calling upon the defendant and the attornies to shew cause why the writ of fi, fa. and the return thereto should

1835.

GREEN

not be taken off the file, and the entry thereof on the roll
erased, or why the return should not be amended accord-
ing to the fact; and why the attornies should not pay the
costs.

GLASBROOKE.

Taddy, Serjeant, shewed cause. If the return be false, the plaintiff has his remedy against the sheriff, which is the ordinary course. Besides, the sheriff is no party to to this rule: and, without his consent or authority, the court cannot alter or amend his return.

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Bompas, Serjeant, in support of the rule.—The court has beyond a doubt the power to amend its own records. The sheriff has been made the mere tool of the attornies, and they, having so misconducted themselves, ought to pay the costs of the amendment and of this motion.

PER CURIAM.—This case is entirely out of the ordinary course.

We think the rule ought to be made absolute; and that the attornies who are called upon to pay the costs, have by their conduct made themselves liable thereto. They ought to have obeyed the order; after that they had no right to take any step in the cause.

The return they have procured is evidently against the justice of the case.

The rule therefore must be made absolute for the amendment of the return by stating the sum levied at 2171. 6s. 6d., according to the fact, and the attornies must

pay the costs.

Rule accordingly.

1835.

LAMBIRTH V. BARRINGTON.

Saturday,

June 13th. IN Trinity Term, 1834, the court, by a rule made in the court has pursuance of the interpleader act, 1 & 2 Will. 4, c. 58, order rules directed an issue to try the validity of an assignment by made under

the interpleader Barrington to Wright and Cook in trust for Barrington's act, 1 & 2 Will

. creditors, in which issue Wright and Cook were plaintiffs entered in any

other manner and Lambirth defendant. The issue was tried at the

than as pointed Summer Assizes for the county of Sussex, 1831, and a ver- out by the 7th dict found for the plaintiffs. On the 2nd November, according to 1834, a rule was obtained by the plaintiffs whereby the defendant Lambirth was ordered to pay the costs. On the 25th, Lambirth died.

their true date.

Spankie, Serjeant, in Hilary Term following, obtained a rule nisi for leave to enter up the judgment nunc pro tunc—that the personal representatives of Lambirth should pay the costs of the issue—or that the rules obtained under the act should be entered of record nunc pro tunc.

Beere shewed cause (a).- 1. The courts never allow parties to enter up judgments nunc pro tunc, unless the delay has arisen from the act of the court. The rule is so laid down in all the books of practice. In Tidd, 9th ed. 932, it is said: "If either party die after a special verdict or special case, and pending the time taken for argument or advising thereon, or on a motion in arrest of judgment, or for a new trial, judgment may be entered at common law after his death as of the term in which the

(a) The rule having been enlarged by consent, it was conceded that the rights of the parties must be considered the same as if the argument had taken place in Hi

lary Term. It was also taken for granted that the rules under the interpleader act, when entered of record, would have the same effect as an ordinary judgment.

1835.

LAMBIRTH

BARRINGTON..

postea was returnable or judgment would otherwise have been given, nunc pro tunc; that the delay arising from the act of the court may not turn to the prejudice of the party."

In Bates v. Lockwood, 1 T. R. 637, where an action was brought on a judgment recovered in the King's Bench, and after judgment the defendant brought a writ of error, and obtained a rule to stay proceedings in the mean time, and the plaintiff died before judgment was affirmed, the court refused to permit judgment to be entered nunc pro tunc. There is nothing in the circumstances of the present case to induce the court to interfere: the parties had the whole of Michaelmas Term to enter the rules. A judgment entered of Hilary Term never could have relation back to the Michaelmas Term preceding; though, before the new rules, a judgment entered in the vacation after Michaelmas Term would have had relation back to the first day of that term (6).-2. As to that part of the rule which calls upon the personal representatives of Lambirth to pay the costs of the issue, the answer is, that they are not before the court.-3. The court has no power to order the rules and orders under the interpleader act to be entered as prayed. The 7th section provides “ that all rules, orders, matters, and decisions to be made and done in pursuance of the act, except only the affidavits to be filed, may, together with the declaration in the cause (if any), be entered of record, with a note in the margin expressing the true date of such entry, to the end that the same may be evidence in future times, if required, and to secure and enforce the payment of costs directed by any such rule or orders: and every such rule or order so entered shall have the force and effect of a judgment, except only as to becoming a charge on any lands, tenements, or hereditaments; and in case any costs shall not be paid within fifteen days after notice of the

(a) See rule 3, Hilary Term, 4 Will. 4.

1835.

LAMBIRTH

BARRINGTON.

taxation and amount thereof given to the party ordered to pay the same, his agent or attorney, execution may issue for the same by fi. fa. or ca. sa., adapted to the case, together with the costs of such entry, and of the execution if by fi. fa.; and such writ and writs may bear teste on the day of issuing the same, whether in term or vacation,” &c.

Spankie, Serjeant, in support of his rule, relied on the statute 17 Car. 2, c. 8, by which it is provided, that, where either party dies between verdict and judgment, “his death shall not be alleged for error, so as the judgment be entered within two terms after the verdict."

Tindal, C. J.-I feel some difficulty in coming to the conclusion that the court has authority to do that which is prayed by this rule; for, I find it expressly declared by the legislature that all rules, orders, &c., made in pursuance of the act may be entered of record with a note in the margin expressing the true date of such entry. This rule calls upon us to enter the rules now as of a day past, in direct contradiction to the act of parliament. I feel the full force of the argument urged upon the statute 17 Car. 2, c. 8. But still that is only analogy: here we have the express declaration of the legislature. One cannot but observe, too, that the difficulty is one that the parties have in some degree involved themselves in: they had from the 2nd to the 25th November to enter the rules ; Lambirth being all the time alive. I give no opinion as to whether or not the suit is abated, or whether the plaintiffs are at liberty to enter the judgment as at common law. If such a proceeding were regular, the court would not interfere.

The rest of the court concurring

Rule discharged, without costs.

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