1905 v. DAVID & VAUX. Bailhache, for the plaintiff. The plaintiff is the sheriff of Glamorgan, and claims against the defendants the costs and GLASBROOK charges of an execution levied at their instance and withdrawn by them. The amount has been settled by the taxing master. The taxation cannot be reviewed in the ordinary way: Townend v. Sheriff of Yorkshire (1); but the same case prevents the plaintiff from contending that the defendants cannot come here and shew reasons why they are not bound to pay. But there is a primâ facie case in the sheriff's favour, and the defendants must displace it. J. R. Atkin, for the defendants. The claim of the sheriff is to remuneration by means of double possession money, which is unheard of. At common law the sheriff had no right to remuneration at all. By the statute of 29 Eliz. c. 4, a scale of poundage was fixed which is still in force, by way of remuneration. But this could only be recovered out of the moneys realized. In Bilke v. Havelock (2) Lord Ellenborough makes some strong remarks on a sheriff's claim for costs incurred for ineffectual proceedings. The Sheriffs' Fees Act, 1837 (1 Vict. c. 55), for the first time gave a right to possession money. That Act fixed a scale of expenses which is still in force in the case of the execution of all writs except fi. fa. It fixes a different scale of possession money according to whether the man in possession has his board or not, which shews that it was intended only to cover out of pocket expenses. These expenses would, however, still only be recovered out of proceeds. of a successful execution. The Sheriffs Act, 1887 (50 & 51 Vict. c. 55), consolidated the law as to sheriffs, and provided for rules being settled as to fees. The only rules issued are those as to executions under writs of fi. fa., set out in the Annual Practice, vol. ii. pp. 266, 267. These rules for the first time enabled the sheriff to recover fees for seizure, mileage, and possession from the execution creditor where the execution was withdrawn or produced nothing. The wording of the rules shews that these fees are only intended to cover expenses. It has been decided that double fees cannot be charged for seizure or mileage: In re (1) (1890) 24 Q. B. D. 621. (2) (1813) 3 Camp. 374;114 R. R. 758. Wells, Ex parte Sheriff of Kent. (1) Both these charges were GLASBROOK claimed in this case and disallowed. Possession under one 1905 writ enures for the benefit of the others: Jones v. Atherton. (2) The general principle is that the sheriff should not be paid twice for the same work: Sneary v. Abdy. (3) In Ex parte Sims, In re Grubb (4), these charges are called incidental expenses. Clode, amicus curiæ, referred to In re Morgan, Ex parte Board of Trade. (5) Bailhache, in reply. As a matter of fact, separate quantities of goods were seized for and allotted to each execution creditor. [FARWELL J. After the admissions, that is not open to you in reply.] On the general law there is no direct decision, but this case shews the general opinion as to the practice. The charge was allowed, not only by the taxing master in this case, but by the taxing masters in all the interpleader proceedings. Where the rules mean that only the actual moneys expended should be paid, they say so―e.g. (5.) For removal of goods or animals, 'the actual cost"; (6.) For advertising, &c., " the sum actually and necessarily paid." 66 The The rule (4.) as to possession money is quite different: it fixes a definite sum to be paid to the sheriff, in all cases. second execution creditor gets the benefit of the possession, and, if the defendants' contention is correct, they are under no liability to pay for it, even if the sheriff can get nothing from the first creditor. FARWELL J. I am obliged to the learned counsel on both sides for the assistance they have given me. The question, to my mind, turns simply upon the construction of the rules under the Sheriffs Act, 1887. The last clause of the rule provides that, "In every case where an execution is withdrawn, satisfied, or stopped, the fees under (1) (1893) 68 L. T. (N.S.) 231. (3) (1876) 1 Ex. D. 299, 304. (4) (1877) 5 Ch. D. 375. (2) (1816) 7 Taunt. 56; 17 R. R. 442. this order shall be paid by the person issuing the execution": 1905 V. DAVID & VAUX. Farwell J. that is this case. The sheriff seized, and for the purpose of my GLASBROOK decision I assume that he seized all the goods once for all. I think that is the fair meaning of the admissions, and I think that is the point the parties have come here to try. There were seven levies altogether, and, the goods having been once seized, there could be no subsequent seizure. The intention of the Act of 1887 was no doubt to enable the sheriff to recover the poundage and his expenses. Although the Act of Parliament uses the word "fees," and, of course, the rule follows it, when you come to look at the details they are the actual expenses: first, of making inquiries; secondly, of seizure; thirdly, of mileage; fourthly, of the man in possession. The sheriff claims to have payment for the same man in possession from each of the judgment creditors. The result would be that the sheriff would get a very large sum (I am told 1207.) as possession money. I do not think that can be the true meaning of these rules. I think the proper view is that the sheriff was entitled to have his poundage, and, in addition to that, these fees, which are actual out of pocket expenses, and all of which stand on the same footing. It has been held that there can be only one fee for seizure and one for mileage. If there can be only one seizure, and one journey to make a seizure, the possession also, so long as there is only one man in possession, must, it seems to me, be treated as a single possession. And I come to that conclusion the more readily because the rule provides that the man is in every case to provide his own board. That looks as if this 5s. a day is meant to keep the sheriff from being out of pocket. In Ex parte Sims (1) James L.J. treats possession as being one of the incidental expenses that the Act intended to provide for; and I think this case is indistinguishable in principle from the decision of Vaughan Williams J.: In re Wells, Ex parte Sheriff of Kent. (2) I am unable to see any ground for distinguishing between seizure, mileage, and possession. The three really hold (1) 5 Ch. D. 375. (2) (1893) 68 L. T. (N.S.) 231. together, and I think Wright J. in In re Morgan (1) took that GLASBROOK Same view. 1905 v. DAVID & Farwell J. The result is that, whatever may be the liability of the various judgment creditors to the sheriff so long as he remains unpaid-and as to that liability I say nothing when he has been paid in respect of seizure and mileage and possession by one creditor he cannot recover the same sum from any of the others. Judgment for defendants. Solicitors: Helder, Roberts & Co., for Hartland, Isaac, Watkins & Co., Swansea; McKenna & Co. C. A. 1905 Feb. 9, 10. J. R. B. [IN THE COURT OF APPEAL.] KENT COUNTY COUNCIL v. FOLKESTONE CORPORATION. Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61), s. 1—Limitation of Sect. 12, sub-s. 1 (b), of the Locomotives Act, 1898, provides that proceedings by a highway authority for the recovery of the extraordinary expenses incurred by them in repairing a highway by reason of extraordinary traffic thereon "shall be commenced within twelve months of the time at which the damage has been done, or where the damage is the consequence of any particular building contract, or work extending over a long period, shall be commenced not later than six months after the completion of the contract or work." Held, that, notwithstanding this limitation of twelve months, an action against a public authority, in respect of damage to a highway caused by them "in pursuance or execution of any Act of Parliament, or of any public duty or authority," must be brought within the six months limited by s. 1 of the Public Authorities Protection Act, 1893. But, if the act which causes the damage to the highway is done by an independent contractor employed by a public authority in pursuance of his contract with them, he not being their servant or agent, the limit of six months fixed by s. 1 of the Public Authorities Protection Act, 1893, has no application. In such a case an action in respect of the (1) [1904] 1 K. B. 68. damage can be brought against the public authority under s. 23 of the Highways and Locomotives (Amendment) Act, 1878, as amended by s. 12 of the Locomotives Act, 1898, as persons "in consequence of whose order" the damage has been done, and the time within which the action must be brought is that which is fixed by s. 12, sub-s. 1 (b). C. A. 1905 KENT COUNTY COUNCIL V. The effect of the latter part of sub-s. 1 (b) of s. 12 is, "where the damage is the consequence of any particular building contract or work FOLKESTONE CORPORATION. extending over a long period," to give a period of "six months after the completion of the contract or work," in addition to the twelve months fixed by the prior part of sub-s. 1 (b), within which the action may be brought. A corporation, in carrying out a scheme for the widening of one of their roads, entered into a contract with a contractor for the hauling of stone. The contractor used traction engines to haul the stone, and in so doing caused damage to some other roads which were repairable by the county council as the highway authority. The contract was for a year, commencing on April 1, 1902, and terminating on March 31, 1903. The damage to the roads took place between January 19 and March 24, 1903. The work of widening the road was completed in September, 1903. On February 11, 1904, the county council commenced an action against the corporation to recover the additional expenses of repairing the plaintiffs' roads in consequence of the use of the traction engines:— Held, that the action could be maintained against the corporation as the persons "in consequence of whose order" the damage had been done: But, held, that the limit of six months for bringing the action fixed by s. 1 of the Public Authorities Protection Act, 1893, did not apply, because, the contractor not being the servant or agent of the corporation, the act was not done by them, and it was done by him in performance of his private obligations under his contract, and not in pursuance or execution of any public duty or authority: Held, therefore, that the time within which the action must be brought was that fixed by s. 12, sub-s. 1 (b), of the Act of 1898: Held, also, that the hauling of the stone was a distinct work from the widening of the road, and that the plaintiffs could only recover in respect of the damage done since February 11, 1903, i.e., within twelve months from the issue of the writ in the action. Judgment of Darling J. reversed. APPEAL by the plaintiffs from the judgment of Darling J. The plaintiffs, as the highway authority liable to repair certain main roads in several parishes, in the county of Kent, in the neighbourhood of Folkestone, brought the action to recover from the defendants the extraordinary expenses, amounting to 520l. 8s. 10d., incurred by the plaintiffs in repairing those main roads, " by reason of the damage caused by excessive weight passing along the same and extraordinary VOL. I. 1905. 2 U 2 |