CASES ARGUED AND DETERMINED IN THE Court of COMMON PLEAS, AND OTHER COURTS, אן Trinity Term, In the Third Year of the Reign of WILLIAM IV. KEYS V. SMITH. 1833. May 22. upon terms, THIS IIS was an action on a bill of exchange, and the Venue cause stood for trial at the last Taunton assizes, by changed, a special jury, called for on the part of the Defendant; to favour the when a sufficient number of jurors failing to appear, discharge of a prisoner. neither party would pray a tales, and the cause stood over. But Coleridge Serjt. last term, on an affidavit that the Defendant had, since the Taunton assizes, become, and was now, a prisoner in the Fleet, obtained a rule nisi for trying the cause in Middlesex at a sittings in this term, VOL. X. B the 1833. KEYS ข. SMITH. the Defendant paying to the Plaintiff the difference of expense to be occasioned him by trying here instead of trying in Somersetshire, where the Plaintiff's witnesses resided. Wilde Serjt., who shewed cause, contended that this was no sufficient ground for departing from the general rule and conceding the change of venue prayed by the Defendant. Coleridge urged the hardship of keeping the Defendant in prison till the next Somerset assizes, when the cause might be tried here without inconvenience to the Plaintiff, and the Defendant, if he obtained the verdict, be discharged at once. TINDAL C. J. The application is not unreasonable; and we should be inclined to accede in consideration of the Defendant's position, if it were not for our objection to depart from the general practice of the Court. However, as the case is very peculiar, and not likely to recur, we think the trial may be fixed for the first sitting after term. Rule absolute. ISAAC v. SPILSBURY. 1833. May 22. pleader act, THE sheriff having seized certain goods under a fi fa., The Court issued against the Defendant on the 15th of March will not interfere, under last, the Defendant's wife made claim to them, alleging the interthat they were vested in trustees to her separate use; and, shortly afterwards, the Defendant petitioned the insolvent debtors' court for his discharge. The sheriff having been ruled to return the writ, in Easter term Spankie Serjt., on the part of the sheriff, obtained a rule, calling on the Plaintiff, the Defendant, Susannah Spilsbury, the Defendant's wife, and the provisional assignee of the insolvent debtors' court, to shew cause why they should not appear and state the nature and particulars of their respective claims to the goods seized by the sheriff, and maintain or relinquish such claims, and why further proceedings against the sheriff should not be staid till such claims should be adjusted. Susannah Spilsbury's trustees disclaimed any intention to interfere, and the provisional assignee did not appear; whereupon Andrews Serjt., who shewed cause on behalf of the Plaintiff, contended that no colorable title had been made to the goods, and that the interpleader act, under which the sheriff required the Court to interfere, applied only to cases where conflicting claims are made to goods in the sheriff's hands. Spankie urged that the trustees might still come forward, and the sheriff be still in danger from the Defendant's assignee; and that, looking to all the circumstances, B 2 for the sheriff, quia timet, unless a claim to property be actually made. 1833. ISAAC T'. SPILSBURY. stances, the Court, in the exercise of an equitable discretion, would allow the sheriff to pay in the money levied, to abide the event of any claim which might be made. TINDAL C. J. This motion has been made on the late act 1&2 W. 4. c. 58. But the facts of the case are not such as fall within the provisions of that statute. The words of the statute are, that upon application by any Defendant, shewing that such Defendant does not claim any interest in the subject matter of the suit, but that the right thereto is claimed or supposed to belong to some third party, who has sued or is expected to sue for the same, it shall be lawful for the Court to make rules and orders, calling upon such third party to appear and state the nature and particulars of his claim. We must, therefore, see that a claim has been made. to the goods in question, and a claim of such a nature as may be followed by an action. Here there are two parties by whom such claim might be made. First, the Defendant's wife but her property is vested in trustees; her trustees disclaim any interference; and her claim, if any, is only such as would be attended to in a court of equity. The other party is the provisional assignee of the insolvent debtors' court, who has neither made a claim nor appeared to this motion. All, therefore, that we can do is to discharge the rule. PARK J. I am of the same opinion. Instead of there being any persons who actually make a claim to the goods, the sheriff calls on persons to appear and state the particulars of their claims. was GASELEE J. and BOSANQUET J. concurring, the rule Discharged. The Court allowed the sheriff a week to sell the goods. and return the amount. 1833. GROVES, Assignee of BOWLER, v. CowHAM and Others. May 23. sheriff was liable in trover for having TROVER. On the 19th of June 1832, Bowler, then Held, that a in prison, petitioned the insolvent debtors' court for his discharge. On the 20th the Defendant Cowham, sheriff of Surrey, seized Bowler's goods by virtue of fi. fa. issued on a cognovit entered up on the 11th of the same month. a sold, after notice of assignment to the provisional On the 23d Bowler executed the usual conveyance of assignee, the goods of an all his effects to the provisional assignee of the insolvent insolvent taken debtors' court. Notice of that circumstance was forthwith in execution under a judgcommunicated to the Defendant, and he was required ment on cog not to proceed with the execution by selling Bowler's novit, after goods. The Defendant, however, persisted in proceed- the coming, and on the 27th the goods were sold under the of the infi. fa. Upon proof of these facts at the trial, a verdict was but before found for the Plaintiff, which mencement solvent's imprisonment, the assign ment to the provisional Jones Serjt. obtained a rule nisi to set aside, and assignee. enter a nonsuit instead, on the ground that the sheriff was not, under the circumstances, liable to any action, or, if liable to any, only to an action for money had and received. Andrews and Bompas Serjts., who shewed cause against the rule, relied on the thirty-fourth section of 7 G. 4. c. 57., which enacts, "That in all cases where any prisoner who shall petition the court for relief under this act, shall have executed any warrant of attorney to confess judgment, or shall have given any cognovit actionem, whether for a valuable consideration or |