also cited Meysey v. Carnell (a), and Rex v. Sheriff of Middlesex. (b) Besides here the render was wholly invalid in consequence of the gross misconduct of the bail. Marryat, contrà, contended, that this case was governed by the same principle as those of attachments against the sheriff, which can not be moved for after a render. Here, if the bail above, had been rejected on the 7th the defendant might have been rendered on the 8th; and the party ought not merely to be placed in a worse situation, than if that had been the case. No instance can be found where an assignment of the bail-bond has been taken either after a render or after a justification of the bail above. ABBOTT C. J. In this case there was a justification and a rule for the allowance of bail; a rule for setting aside that allowance is then obtained, and pending, which the render takes place. The rule for setting aside the allowance being made absolute, the plaintiff afterwards takes an assignment of the bail-bond. It is not necessary for us to decide generally whether such an assignment can be taken after a render or justification of bail above, subsequent to the time allowed for such render or justification, because I am of opinion, that under the special circumstances of this case, the render was not sufficient. If that were not so, the defendant would derive an advantage from his own misconduct having improperly put in bail "above. I therefore think that the assignment of the bail-bond ought to stand, and that this rule should be discharged with costs. 1819. BROWN against JENNINGS. 1 1819. BROWN against JENNINGS. BAYLEY J. If the bail to the sheriff had exculpated themselves from any participation in the fraud, it might make a difference. HOLROYD and BEST JS. concurred. Rule discharged with costs. Tuesday, June 29th. The chief clerk to poundage on money paid into Court by the sheriff, under 43 G. 3. c. 46. £. 2, STEWART against BRACEBRIDGE. is not entitled THE defendant was arrested for 3000% in Michaelmas term, 1817, and paid the sum of 30301., under the statute 43 Geo. 3. c. 46., to the sheriff of Middlesex, in lieu of giving a bail-bond, and the sheriff paid into Court 30287., having retained, by defendant's permission, 21. for extra trouble. The debt and costs having been settled at 3000, the defendant claimed back from the plaintiff's attorney, to whom the whole sum of 30287. had been paid (a), the balance, being 28, but the plaintiff's attorney refused to pay it over, claining to hold it on behalf of the chief clerk of the Court, as for his claim of poundage of one per cent. on all monies paid into Court. Scarlett obtained a rule nisi, calling on the plaintiff's attorney to pay over the balance; and notice having been given to the officer of the Court also, Campbell appeared for plaintiff's attorney, and said he consented to any rule which the Court should pro nounce. (a) This case came before the Court in 1818 on the motion of Campbell; but by consent the money was then paid over to the plaintiff's attorney, subject to the claim of the chief clerk. Gaselee, Gaselee, for the officer of the Court, contended that by the rule 5 Jac. 1., A. D. 1607, this fee was demandable. By that rule 20s. per cent. was ordered to be paid, as a fee to the chief clerk, by every party paying money into Court. Now the 43 G. 3. c. 46. s. 2., under which this money was paid into Court, does not break in upon this rule, which was made in consideration of the responsibility imposed on the officer who has the charge of the money. And though the statute has certainly omitted to direct expressly, that this deduction should be allowed, still when it directs that the money should be paid into a Court, where certain fees are usually demanded, it impliedly makes it liable to those reasonable deductions. Scarlett, in support of the rule, was stopped by the Court. ABBOTT C. J. This does not fall within the rule of Court, 5 Jac. 1., referred to. For that rule only applies to cases where a party, at his own request, pays the money into Court. Here, however, that is not the case, for it is paid in under the provisions of an act of parliament, not by the party to the suit, but by the sheriff. Now, in the statute itself, I can find nothing which authorises such a deduction. The contrary appears to me to be the case. For the second section of the 43 G.3. c. 46. directs the sheriff to pay into Court the sum of money so deposited, and in another part the act speaks of the said sum of money so deposited as aforesaid. The act, therefore, seems to me to refer to the whole sum paid to the sheriff, and to make no provision for the payment of any fee or deduction thereout. Then if this fee does not fall within 1819. STEWART against BRACEBRILGI. the 1819. STEWART against BRACEBRIDGE. the rule of Court, and the legislature have not ex- The rule BAYLEY J. The impression on my mind when this case was formerly before the Court, was that the officer was fairly entitled to some remuneration for his responsibility, in having the charge of this money, and that the amount given by the rule of 5 Jac. 1. was reasonable. But on examining this act of parliament, I am of opinion, that this fee cannot be allowed. The act says, that the money so deposited shall be paid out. Now, if any deductions be made, it no longer remains the money so deposited. The true construction of the act, therefore, is, that all the money paid into Court shall be paid out. HOLROYD J. I am of the same opinion. The rule of Court only extends to payments of money into Court, at the request of a party to the suit. Now that is not the case here. And it does not fall within the statute; for the second section contains no express allowance of any such fees or deductions. Where an act of parliament casts a duty on the sheriff, and does not expressly give him a compensation for it, this Court have decided, that he is entitled to none. And it seems to me, that the officer of the Court is in a similar situation. I think, therefore, that this fee ought not to be allowed. BEST J. This fee is neither within the rule of Court, nor is it expressly given by the statute. By the rule, where where money is voluntarily paid in by the suitors of the Court for their own convenience, a fee is demandable. And that seems to be a reasonable thing. But here the money is not paid in voluntarily, nor by the party, but under the directions of an act of parliament, and by the sheriff. If the legislature create a duty, for which they give no remuneration, this Court cannot interfere for that purpose. We cannot create a new fee where none has been given by the legislature. This rule must, therefore, be absolute. Rule absolute. 1819. STEWART against BRACEBRIDGE. June 29th. DOE on the Demise of HENRY REYNELL against Tuesday, BINGHAM had obtained a rule nisi to amend the declaration in ejectment by enlarging the term which had expired, in order that the plaintiff might sue out a scire facias to revive the judgment and take out a writ of possession. By the affidavits it appeared that the action was commenced in 1798, and that the plaintiff obtained a verdict for one-sixth part of the premises at the Spring Assizes 1799, and judgment was entered up on the 23d of July 1799, but no writ of possession was ever issued. In 1799 Elias Tuckett, the defendant, died, and in 1801 a fresh ejectment was brought against Philip Debell Tuckett, nephew and heir of Elias Tuckett, for the remaining five-sixths, on which occasion the plaintiff was nonsuited. In 1809 a third ejectment was brought against the same party for the whole, and the defendant then obtained a ver3 E dict. VOL. II. |