1863. THE QUEEN against STURGES. 66 Geo. 3, c. 35. Hullock B. said," The words of the statute are "on the application of his Majesty's Attorney-General,' "and I have heard both the late Lord Gifford, when Attorney-General, and the present Master of Rolls say, that though a motion of course, it must be made personally "by the Attorney-General." Garrow B. "I recollect the "late Lord Chief Baron Richards, saying that the "motion must be made by the Attorney-General himself." The officers of the Court stated that such motions were frequently made on behalf of the Attorney-General, and drawn up in his name; and Jervis and Clarke said, they had themselves made motions of the same description in the name and on the behalf of the Attorney-General Motion granted. We think therefore, in reason and on authority, the Solicitor-General had a right to stop the case at Nisi Prius, by an entry to be made on the postea, ulterius non vult prosequi, on which judgment might be entered. Rule discharged. Two executions against B. for £6,000 each, one at D' WETMORE against McLEOD and OTHERS. EBT by the Sheriff of Kent, to recover poundage on £3,000, as the value of a compromise made after the suit of 4. levy under a fi. fa. execution, issued on a judgment reand the other covered by the defendants against John W. Holderness; individually, at his suit as administrator, were delivered to the Sheriff, with directions that the first named execu tion was to be first satisfied. The Sheriff levied, and afterwards by direction of A's attorney, abandoned the levies, and returned the executions" Nulla Bona," indorsing thereon his fees and poundage. Held, in an action for poundage on the second execution, (poundage on the first having been paid), that an admission by A., that he had received £9,000 of the amount he claimed from the judgment debtor, was, in the absence of any evidence by him of the amount of the compromise, evidence from which the jury might inter that that was the amount of the compromise in both actions, £6,000 of which was applicable to the first execution, leaving £3,000 as the amount of the compromise of the second execution, and upon which the Sheriff was entitled to poundage under 1 Rev. Stat. c. 163. tried before Parker, J., at the last Kent circuit. The facts of the case are fully stated in the judgment. A rule nisi for a new trial having been granted, on the grounds that the verdict was against evidence, and for the improper rejection of evidence. D. S. Kerr shewed cause in Hilary term last, contending 1st. That there was clear evidence of a compromise for the two executions for £9,000, and that the jury were warranted in inferring that £6,000 were applied to the first execution, leaving £3,000 for the other, on which amount the plaintiff was entitled to recover poundage. 2d. The deed was properly rejected, the plaintiff being neither a party nor privy to it, and no express reference being made to it in the conversation relied on. Clerk v. Withers (a), Mildmay v. Smith (b), Harrington v. Taylor (c), Kavanah v. Phelon (d), Alchin v. Wells (e), Chapman v. Bowlby (ƒ), Rawstorne v. Wilkinson (g), Bullen v. Ansley (h), Bac. Ab. "Fees" (C) were cited. Palmer, contra. The finding was on an express compromise, and there is no evidence to sustain such a finding. A compromise cannot be presumed from the mere fact of a levy having been made and afterwards withdrawn at the request of the execution creditor. The deed should have been admitted. The defendants had no opportunity to produce documents recited in the deed until the deed was in evidence. Cur, adv. vult. PARKER, J., now delivered the judgment of the Court. This was an action brought by the late Sheriff of the County of Kent, to recover his poundage and execution fees on a fieri facias, issued by the defendants, on a judgment recovered in the Court of Common Pleas for that County, indorsed to levy £6,004. (a) 6 Mod. 290. (b) 2 Saund. 343. (c) 15 East, 378. The 1863. WETMORE against MCLEOD. 1863. WETMORE against MCLEOD. The plaintiff obtained a verdict for poundage on £3,000, as the value of a compromise made after levy, in accordance with the table of fees in the Revised Statutes, p. 487, which, after prescribing the rate of poundage "for "levying and paying all monies on execution," adds the following words "if compromised after levy, the same "rate, to the value of the compromise." It was contended that the plaintiff did not give sufficient evidence of there having been any compromise, or any evidence of the value of the compromise, beyond an admission of Mr. McLeod, one of the defendants (since deceased), which was susceptible of another meaning, and that the learned Judge improperly rejected evidence of a deed, which if received, would have shewn or tended to shew, that the admission applied to the terms of that deed, and not to any compromise of the execution. No authority was cited to warrant the admission of the deed tendered. The defendants' counsel, when asked at the trial by the learned Judge, whether it was intended to shew by the deed what the compromise was, answered in the negative. It was produced to the Court at the argument, and has been examined by us. The plaintiff was neither a party nor privy to it when made, and for aught that appeared, was ignorant of its existence at the time of the conversation. No express reference was made to it in the conversation relied on, and, however slight the admission may have been, it was made while this action was pending, in a conversation solely arising in consequence of the Sheriff's demand, and in reference thereto; and we think was properly left to the jury, who were cautioned by the learned Judge as to the effect of it, in comparison with the other evidence in the case. When the whole evidence is considered, it appears to us very probable that the plaintiff has recovered a larger sum than he would have obtained on a sale of the property levied on; but it was no fault of his that he did not proceed to sell. He did all that was required of him, and 1863. WETMORE against proved at the trial all that could be expected of him to prove; and though his valuation of the goods levied on may have been excessive, still there was reason to think that the execution creditors did intend to levy on sufficient MCLEOD. to cover the execution, and were under the impression that they had done so, though they were probably mistaken in that. It appeared that two executions against John W. Holderness, each for £6,004 were delivered to the Sheriff at the same time, viz. 26th June, 1858, to be executed; one at the suit of McLeod for his own debt, which was to have the priority, - the other, at the suit of the defendants in this action for a debt due to them as the administrators of one George Sutherland. A schedule of goods, with the following written memorandum, was given to the Sheriff with the executions: "You will levy on the property in "the annexed schedule, as pointed out by Mr. J. Markham. "Dated 26th June, 1858." The levy was as directed. The plaintiff's attorney shortly afterwards sent word to the Sheriff to levy on some logs, fearing the first levy would be insufficient, but the Sheriff did not receive the direction until it was too late to act on it; but it tended to confirm the impression that the intention had been to levy enough to cover the amount of the execution in the first instance. On the 1st July, the plaintiff's attorney wrote to the Sheriff as follows: "I hereby request you to abandon the levy made by "you upon all the goods and chattels levied under the "execution in this cause, and return the said execution "Nulla Bona,' unless you sell without indemnity." The Sheriff, in reply, said he would sell without indemnity, supposing, though perhaps erroneously, that he could retain the proceeds of sale until he was indemnified. Upon this, the plaintiff's attorney on the same day, directed him to abandon the levy altogether on the execution in this cause. Similar directions had already been given in the other suit. The levies probably had served the purpose intended, of making terms with the assignees of Holderness, who had become a bankrupt in England. On this, the Sheriff withdrew 1863. withdrew the levy, and returned the execution with his fees indorsed, he claiming full poundage, and the expenses WETMORE in both cases. Neither at this time, nor afterwards, when against MCLEOD. he rendered his bill, did McLeod state that the levies were withdrawn without compensation; on the contrary, on the 9th August following, when asked if he was going to settle the bill, he said, "he was about getting an arrangement "with the assignees of Holderness, to close, and that as "soon as that was done he would settle it." The Sheriff having waited until the end of September, again called on Mr. McLeod, who then referred him to his attorney, Mr. James; but the Sheriff refused to go to Mr, James, and commenced actions to recover his poundage. It was proved, that in the first action he had recovered the full poundage on £6,004; but before this recovery, and after the action brought, McLeod had a conversation with the plaintiff at Buctouche, and told him that he wanted to have the suits settled; that he had received £9,000 from the assignees, for what he was contending for against Holder ness. Now, when it is remembered that the execution plaintiffs were at perfect liberty to withdraw the levies, and make a compromise without the consent or knowledge of the Sheriff, or any intimation to him of the terms on which the levies were withdrawn; and that the reasons for withdrawing the levies were not at any time stated to the Sheriff; it is impossible to say that there was not presumptive evidence of some compromise, and, if this were so, what was the proper course for the defendants to have taken? Was it not incumbent on them, either to rebut the presumption, by shewing that there was no compromise, the levies being abandoned without any consideration, or, to shew what the consideration was, - which would fix the value of the compromise? If the defendants, for other prudential reasons, would not disclose the terms on which the levies were withdrawn, they must take the consequences. In the absence of any such evidence from the party in whose power it was to give it, we cannot say that the jury were not at liberty to |