1863. THE PRESIDENT, &c., OF THE CENTRAL BANK against McKEEN. levy is not necessary to entitle a poundage: therefore, where after defendant levy had been property afterwards Sheriff. Mr. Held, -that under 1 Rev. was Stat. cap. 163, 8d., was entitled the Sheriff HIS was an application on behalf of Thomas Paddock, An actual the assignee of the judgment in this case, to reduce the amount of the fees charged by the Sheriff of York, on a fi. Sheriff to fa.execution issued in this cause, and that the Sheriff should pay to Paddock the full amount received under the execu- execution tion. It appeared by the Sheriff's return, that he had re-issued, the ceived the execution on the 6th January, 1863, indorsed gave a written acknowledgto levy £477 98. 8d., and interest on £377 16s. 11d., ment that a from the 12th December, 1861, till paid, besides Sheriff's made on his fees, &c.; that the defendant gave him a written acknow- under it, and ledgment of a levy under the execution, on all his goods paid the That afterwards, on amount to the and chattels, lands and tenements. the 17th January, 1863, an order of His Honor, Justice Wilmot was served upon him, whereby it ordered, that on payment by the defendant, of £477 98. and interest on £377 16s. 11d., from the 12th December, on the amount 1861, to the 4th January, 1862, the Sheriff should return the execution "satisfied," and that satisfaction should be entered on the judgment roll, by the plaintiff's attorney. That on the 21st of January 1863, and before the return ment, which of the execution, the defendant paid the Sheriff £178 11s. take, and 4d. being the amount directed to be paid by the Judge's tion, under order, which sum the Sheriff' was ready to pay over to the Sheriff levied: plaintiff, subject to the payment of certain fees claimed: then obtained viz., £9 ̊ 16s. 2d., poundage, and 5s. 9d. for the levy. The Judge's order referred to, was made on it being payment to shewn that on the 4th January, 1862, before the execution the amount issued, the amount due by the judgment had been tendered in execution bank notes by the defendant, to William H. Robinson, turned "satis tion should be entered on the judgment: the defendant thereupon paid the Sheriff. Held, that he was entitled to retain out of the amount so paid, his execution fees. the to poundage paid. Defendant tendered the plaintiff the amount due on a judg he refused to issued execu which the the defendant a Judge's order, that on the Sheriff of tendered, the should be re fied," and 1863. CENTRAL BANK MCKEEN. the assignee of the judgment, who refused to accept it, claiming that the defendant owed him a larger amount; that he afterwards agreed to accept the amount of the against judgment, but required it to be paid in gold, which caused a few days delay, and that when the defendant tendered the gold, Robinson refused to receive it, stating that he had assigned away the judgment, but declined to state to whom he had assigned it; in consequence of which, the defendant was unable to pay the amount till the execution issued. Fraser, in support of the motion, contended that the Sheriff was not entitled to the fees claimed, as no actual levy had been made. The defendant's acknowledgment did not amount to a levy. [PARKER, J. How can the plaintiff take that objection?] To be entitled to poundage, the Sheriff must levy; he did not receive the money under any levy in this case, but under the Judge's order; and he can only take what the order allows him. Allen, contra. Robinson, the assignee of the judgment, or Paddock, who claims under him, improperly and wrongfully issued the execution, and set the Sheriff in motion, and they must pay his fees. The Sheriff could not levy his fees from the defendant, because the Judge's order directs satisfaction to be entered on the judgment, on payment of the amount indorsed on the execution; he is therefore entitled to deduct them out of the money in his hands. An actual levy is not necessary. Doe v. Hazen (a). [RITCHIE, J. Here the levy was the very best one possible. The Sheriff got the money.] The fee is given expressly for levying and paying over. 1 Revised Statutes 487. Whether the money is paid voluntarily by the debtor to the Sheriff, or is obtained by means of a sale of his goods, can make no difference: in either case, the Sheriff is entitled to his poundage and fees, for his trouble and risk in receiving and paying over the money. Fraser in reply. There must be a levy to entitle the [RITCHIE, J. How do you get over (a) 3 Allen, 87. the the case of Doe v. Hazen? N. PARKER, M. R. The plaintiff must pay the Sheriff. There is not the slightest ground for the motion. I think it should be dismissed with costs.] Per Curiam: Application dismissed with costs. (a) (a) See, Reynolds v. Ayers, ante, p. 339; Bissicks v. The Bath Colliery Co. L. R., 2 Ex. D. 459. In Brooks v. Palmer, Hil. T. 1878, where the Sheriff went to levy under an execution, and the debtor told him that he had a certain stock, of which the Sheriff made a memorandum, and told the debtor that he had levied upon it, and, at the debtor's request, left it in his possession, on a promise that it should not be removed; it was held that the debtor was estopped from saying there had been no levy. 1863. CENTRAL against MCKEEN. THE THE QUEEN against ROBERTS. for selling out license before A, a Peace, who, of the sum mons, ad trial. Pend adjournment, HE defendant was summoned to appear before Thomas A prosecution W. Bliss, Esquire, a Justice of the Peace for the liquor withCounty of Kent, at the Parish of Richibucto in that County was instituted (in which parish, both the Justice and the defendant Justice of the resided), to answer a complaint for selling liquor without on the return a license. At the return of the summons, the hearing was adjourned till a further day; before which day, the defend- journed the ant went before another Justice, in a different parish, and ing the admitted the sale of liquor without license, as alleged, defendant whereupon this Justice entered a conviction, and imposed another Jusa small fine on the defendant. At the adjourned hearing mitted the before Mr. Bliss, the defendant pleaded this conviction in upon such bar; but Mr. Bliss, notwithstanding, proceeded with the posed a tine case, and convicted the defendant of the offence charged. upon him. A rule nisi for a certiorari to remove this conviction, journed hearhaving been obtained, went before tice, and ad sale, where Justice im At the ad ing before A, the defendant pleaded this bar; but A, with the ease, Allen now shewed cause, and contended that the first conviction in conviction was a fraud, and was no defence to the conviction proceeded before Mr. Bliss, the defendant having himself procured it and convicted after the proceedings before Mr. Bliss had commenced. The other Justice had no jurisdiction in the matter, as no complaint had been made to him, and he resided in a different parish. Rainsford, contra, was not heard, Per Curiam:- It was a most fraudulent proceeding on the the defendant. Held, - that his conviction was good. 1863. THE QUEEN against ROBERTS. the part of the defendant: the case ought never to have On the trial of an infor mation for in trusion, a T THE QUEEN against STURGES. HE questions in this case were, whether on the trial of an information for intrusion on Crown land, a nolle prosequi nolle prosequi could be entered; and if so, whether it could be done by the Solicitor-General, acting on behalf of the evidence fails Crown. may be en tered, if the to make out the case; and it may be done tor General Watters, Solicitor-General, for the Crown, contended, by the Solici- 1st. That the practice in cases of this kind was to enter a in the name of nolle prosequi; otherwise the Crown would be in a worse. position that a subject. Manning's Exch. Pr. 216. 2d. That the nolle prosequi might be entered by the SolicitorGeneral, acting for the Attorney-General. the Attorney General. Welmore, contra. If a nolle prosequi can be entered at all, it must be by the Attorney-General himself. 1 Chit. Crim. Law 487. [CARTER, C. J. This is not a criminal case.] A nolle prosequi may be entered before the trial, but it cannot be done at the trial, after the jury have been sworn to try the issue. Rex v. Cranmer (a). Cur. adr. vult. CARTER, C. J., now delivered the judgment of the Court. This was an information of intrusion, by the AttorneyGeneral on behalf of the Crown, to recover the possession of land. The case was conducted on behalf of the Crown by the Solicitor-General, who failed to make out any case which would entitle the Crown to a verdict. He applied to the learned Judge at the trial to enter a nolle prosequi, and the question whether he was entitled to do so, was reserved for the opinion of the Court. It was objected that in such a case, a nolle prosequi could not be entered at all; and if it could, it must be moved for by the AttorneyGeneral himself. If the Crown (not being able to become nonsuit) cannot avail itself of a nolle prosequi, it is placed in a much worse position than its subjects, which would be contrary to all theory, and most unfair in practice. That this is not so, appears from a passage in Coke's Institute 139 (b). "The King's Majesty cannot be nousuit, because in judg"ment of law he is ever present in Court; but the King's "attorney, qui sequitur pro domino rege, may enter an “ ulterius non vult prosequi, which hath the effect of a non"suit. But, in an information by an informer, qui tam &c. "the informer may be nonsuited." In Bunbury, 220, a question arose, whether the AttorneyGeneral upon an information qui tam &c. could withdraw a juror upon an information in the Attorney-General's name only; it was admitted he could enter a nolle prosequi upon that information, which in effect amounted to withdrawing a juror. We think also that this proceeding may be taken by the Solicitor-General on behalf of the Attorney-General, though of course it must be in the name of the latter officer. Several informations of this nature might be under trial in different counties at the same time, in all of which it would be impossible for the Attorney-General to be personally present; and it would be unreasonable and unjust, if he had not the right to appear by the Solicitor-General, or any other counsel to whom he may think fit to entrust the the conduct and management of his causes, without losing any of the privileges which appertain to his office, and to the Crown whom he represents. The case of Rex v. Bulkeley (a) goes further than the present. In that case, Seymour moved, as he stated, on behalf of the AttorneyGeneral, that certain lands which had been extended by a writ of extent, might be sold pursuant to the statute 25 (2) 1 Y. & J. 256. Geo. 1863. THE QUEEN against STURGES. |