1841.

ROACH

v.

WRIGHT.

Exch. of Pleas, junction had issued out of the Court of Chancery, whereby the said W. C. Wright was restrained from selling, mortgaging, or in any manner disposing of the said ship. The notice then stated, that in consequence of the above-mentioned facts, the said ship had always, from the death of the said intestate, remained a part of his estate and effects, and that no property in the same passed to the defendant W. C. Wright; and that the said F. O. Dickens and Anna Eliza his wife, on behalf of themselves and of the other parties interested in the estate of the intestate, would hold the sheriff answerable for the loss and damage occasioned to them by the levy on and seizure of the said ship.

E. V. Williams contended, that under these circumstances the sheriff was entitled to relief.—The question in this case is one substantially between the execution creditors and the claimants under the estate of the intestate, which ought to be disposed of between them independently of the sheriff. The parties, by the form of their notice, have put in a legal, not a mere equitable claim, by stating that no property in the ship passed to the defendant: and the proper course would seem to be, to direct an issue to be tried at law between those parties and the execution creditors, whether the ship was part of the personal estate of the intestate, or was liable to be taken in execution as the property of the defendant Wright. [Rolfe, B.-Is not the question whether the ship belongs to the defendant proprio jure, so as to be liable to an execution for his debts, or whether he holds it only as a trustee for himself and others?] If the property forms part of the estate of the intestate, the sheriff, by selling it, would be liable to an action at the suit of the administrator, because the property would be changed by the sale; Whale v. Booth (a). [Parke, B.-In Farr v. Newman (b), it was held that the goods of a testator

(a) 4 T. R. 625, n.; 4 Dougl. 36.

(b) 4 T. R. 621.

in the hands of his executor could not be taken in execution upon a judgment against the executor in his own right. Alderson, B.-The claimant here is not the administrator, and could not therefore bring any action to try the question.] Still the sheriff is in jeopardy, because if he proceeds to a sale, the Court of Chancery may order an action to be brought against him in the name of the administrators, for the benefit of the parties applying for the injunction, and then he would be in jeopardy from having sold the goods in defiance of a notice from those parties.

PARKE, B.-I think no rule ought to be granted in this case. It seems to me that there is no ground for saying that this ship ever formed part of the assets appropriated to the next of kin, by whom the bill in equity was filed. If it belongs to them, they may bring an action against the sheriff; or the question may be tried by an action brought against the sheriff by all the administrators. In the present case, the claim arises out of proceedings in equity, and in the case of Sturgess v. Claude (a), it was decided by my Brother Patteson that the Interpleader Act does not apply to claims in equity. If an execution creditor, under such circumstances, refuse to indemnify the sheriff, the proper course for him is to apply to the Court, not under the Interpleader Act, but to enlarge the time for making a return to the writ.

ALDERSON, B.—I do not think we should be justified in calling upon the next of kin to come in and state their claim under the Interpleader Act. This is a claim on which they could not sustain any action at law against the sheriff in their own name, however they might do so through the medium of the administrators. The issue that would be tried between them and the defendant

(a) 1 Dowl. P. C. 505. See however Putney v. Tring, 5 M. & W. 425.

Exch. of Pleas, 1841.

ROACH

ย.

WRIGHT.

1841.

Exch. of Pleas, Wright would afford no relief to the sheriff. Our jurisdiction is confined to the cases of claims actually made; but what has taken place here is not the making of a legal claim, but only the statement of an equitable interest.

ROACH

V.

WRIGHT.

ROLFE, B., concurred.

Rule refused.

April 29.

A declaration in ejectment laid the demise on

the 31st of October (without mentioning any year). At the

trial, the lessor of the plaintiff

proved a title in himself on the 31st of Oc

tober, 1840:Held, first, that

this was not a variance between the declaration and the proof, so as to empower the Judge at the trial to amend

under the stat.

DOE d. PARSONS v. HEATHER.

IN this ejectment, the demise was laid on the 31st of Oc

tober (not mentioning any year). At the trial before Lord Abinger, C. B., at the sittings after last term, the plaintiff's counsel applied to his Lordship to amend the declaration under the statute 3 & 4 Will. 4, c. 42, s. 23, by adding the year 1840, conformably with the evidence, which shewed the lessor of the plaintiff's title then to have accrued. The amendment was made accordingly, leave being reserved to the defendant to move to enter a nonsuit; and a verdict passed for the plaintiff, a certificate being also granted for immediate possession.

Leahy having obtained a rule nisi for a nonsuit, pursuant to the leave reserved, and also for restitution of the premises to the defendant;

the declaration 3 & 4 Will. 4, c. 42, s. 23, by inserting the year: secondly, G. T. White now shewed cause.-First, this was a case that the omission was no in which the Judge had power to amend the record at nisi ground of nonsuit. prius, under the statute, this being a variance between the declaration and the evidence. But at all events, the omisproper course, sion of the year is no ground of nonsuit. It is not necesin such case, is sary, in stating the title in ejectment, to mention any year Court to compel at all. In Small d. Baker v. Cole(a), the pleadings were

Semble, that

the defendant's

to apply to the

the plaintiff to

insert the cor

rect date.

(a) 2 Burr. 1159.

1841.

d.

PARSONS

v.

HEATHER.

intitled as of Hilary Term, 1 Geo. 3, but the lease declared Exch. of Pleas, on was alleged to be made "in the 33rd year of the said king," which was, at the time of the decision of the case (Easter Term, 1 Geo. 3), an impossible date; but the Court, on motion in arrest of judgment, held that this was not the case of setting out a defective title, but was only a title defectively or improperly set out; and that no amendment was needed. In Doe d. Hardman v. Pilkington (a), Lord Mansfield says " An ejectment is a mere fictitious action. The demise is a mere matter of form it does not exist. It is not like a real title." There an amendment was made in the date of the demise, to prevent the title from being barred by a fine.

No counsel appeared to support the rule.

PARKE, B.-The rule must be discharged. As to the amendment, the Judge at Nisi Prius had no such power in this case. This is not a question of variance between the declaration and the proof, but, if anything, is a defect in the declaration itself. It turns out that the lessor of the plaintiff had a title to these premises on the 31st of October, 1840, and the declaration is applicable to the 31st of October in any year, so that his case is proved. Consequently, if this be any objection at all, it could only be made available on motion in arrest of judgment, although it would probably even then have failed, on the authority of the cases which have been referred to. We need not, however, decide that point at present, because this motion is to enter a nonsuit, which we clearly cannot do. A defendant has no opportunity of demurring to a declaration in ejectment; he must plead not guilty; and if he considers himself prejudiced by the uncertainty of the date of the demise, his proper course is to apply to the

VOL. VIII.

(a) 4 Burr. 2447.

M

M. W.

1841.

Exch. of Pleas, Court to compel the plaintiff to insert the correct date. In the present case, he has chosen to go down to trial, and has let slip his opportunity of having the amendment made.

DOE
d.

PARSONS

บ.

HEATHER.

The other Barons concurred.

Rule discharged.

April 17.

In an action for

STEWART V. CAUTY.

THIS was an action of assumpsit, for not accepting certain the non-accept- half-shares in the Great Western Railway, agreed to be ance of railway shares, which sold by the plaintiff to the defendant. The declaration stated, that the shares were by the contract to be delivered in a reasonable time, and averred that within such reasonto be delivered able time the plaintiff was ready and willing and offered

by the contract (made at Liverpool through brokers) were

in a reasonable

rule of the Li

verpool Stock Exchange, stated to be

acted upon by all the Liver

pool brokers

"that the seller

of shares was in

time, a written to transfer the shares to the defendant, but that the defendant discharged him from transferring the same; and alleged a breach in non-acceptance of the shares. The defendant pleaded, first, non assumpsit; secondly, that the plaintiff was not within a reasonable time ready and willing, nor did he offer to transfer the said shares to the defendant, modo et formâ; thirdly, a traverse of the defendant's having discharged the plaintiff from transferring the shares; and fourthly, that the defendant was ready and willing to accept and pay for the shares within from the day on a reasonable time, but that the plaintiff refused to transfer acquainted with the same, whereupon the defendant rescinded the contract. The plaintiff joined issue on the three first pleas, and

all cases entitled to seven days to complete his contract by delivery, the time

to be computed

which he was

the name of his transferee"

was held admis

sible on an issue

whether the plaintiff within a reasonable time was ready

replied to the fourth by a traverse of his alleged refusal to transfer the shares; on which replication also issue was joined.

and willing and offered to transfer the shares; although it was not proved that either of the parties, or their brokers, was a member of the Liverpool Stock Exchange.

In such action, the proper measure of damages is the difference of the prices of the shares on the day when they ought to have been accepted, and on the day when they were resold by the vendor, such resale being within a reasonable time.