1855. LEA v. ROSSI. April 19. In this case judgment was signed against the defendant The Court or on the 21st of December, 1855, and a writ of fieri facias issued, directed to the Sheriff of Middlesex, who, on the 22nd and 23rd, made several ineffectual attempts to levy on the defendant's goods. Before the judgment, the defendant had assigned his goods by bill of sale to one Wood, as a security for 200l., and Wood claimed them under that assignment. In January, 1855, the defendant petitioned the Insolvent Debtors Court, and the usual order was made vesting his estate and effects in the provisional assignee of that Court, who thereupon took possession of the goods for the benefit of the creditors. The sheriff then obtained an interpleader summons, upon which Wood did not appear; and Platt, B., before whom the summons was heard, made an order barring Wood's claim and that of the provisional assignee, and directing the sheriff to proceed with the execution. H. Bullar now moved, on behalf of the provisional assignee, to rescind the order of Platt, B.-The Court or a Judge has no jurisdiction to make an interpleader order under the 1 & 2 Will. 4, c. 58, s. 6, unless the sheriff has actually seized the goods of the judgment debtor. [Parke, B.-The words of the section are, "when any such claim shall be made to any goods or chattels taken or intended to be taken in execution."] That must be read in connection with the 1st section, by which it must appear, that the applicant "is ready to bring into Court or to pay or dispose of the subject-matter of the action in such manner as the Court (or a Judge thereof) may order or direct." That shews the intention of the legislature, that the sherift a Judge has jurisdiction to make an inter pleader order, on the application of a on sheriff intending to seize goods, though before actual seizure; but such jurisdicrarely exer tion will be cised. 1855. LEA V. Rossi. should not obtain relief unless he had a disposing power over the goods. Holton v. Guntrip (a) decided, that the sheriff is not entitled to relief where, having gone to the premises of the defendant to levy under a fi. fa., he has withdrawn without seizing the defendant's goods on notice of an adverse claim. Alderson, B., there says:-"There is no instance of an interpleader where the sheriff had not possession of the goods, and was therefore unable to deliver them to one party or the other." [Parke, B.-In that case, as observed by Lord Abinger, the sheriff did not come to the Court intending to take the goods, for he abandoned. them.] In Anderson v. Calloway (b) Lord Lyndhurst, C. B., says: "The object of the Act of Parliament was to afford relief to the sheriff where two parties were claiming the property, and he had either the goods or the money in his possession; not to a case where he had paid over the money to one of the parties." Braine v. Hunt (c) decided, that the sheriff is not entitled to relief where he has delivered up any part of the goods to the claimant. [Platt, B. In those cases the sheriff had seized the goods.] In Scott v. Lewis (d), Lord Abinger, C. B., says: “ I think the Act implies that the goods or money must be in the hands of the sheriff at the time of his application to the Court." [Parke, B.—That must be understood with reference to the facts of the case: it means, that, if the sheriff has seized the goods, they or their proceeds must be in his hands at the time he applies for the interpleader order; and that if he does not choose to retain them, he has no right to apply.] In 2 Chit. Arch. 1222, it is stated, that the sheriff must have possession of the goods. PARKE, B.-It is perfectly clear, that, in this case, my Brother Platt had jurisdiction to make the order. The (a) 3 M. & W. 145. (c) 2 C. & M. 418. statute, in express terms, says, that the sheriff may apply for relief where the goods are taken or intended to be taken in execution. In all the cases cited, the sheriff had either withdrawn or given up the goods. There is no doubt about the jurisdiction, though, probably, it will be very rarely exercised. MARTIN, B.-It may be that the property is of such a nature that it might be injured by seizure; in which case the sheriff would be right in applying for the order before seizure. I do not think that, in all cases, a Judge would interfere if the sheriff had not seized, but cases might arise in which great injustice would be done if he did not. Rule refused. 1855. LEA บ. Rossi. YATES and Others v. DUNSTER. April 26. being assignee which con of a lease tained a co venant to re THE declaration stated, that the plaintiffs were possessed The plaintiff, of a messuage and premises for the residue of a term of nine years, created by a lease, in and by which the lessees covenanted for themselves and their assigns well and substantially to repair the messuage and premises during the term, and which lease had legally come to and vested in the plaintiffs by assignment, and they then were and still are assignees of the same; of all which premises the defendant had notice; and thereupon the plaintiffs demised to the pair, underlet the premises to the defend ant, upon the terms, that he should "main tain them in as good a state as they would be when repaired by him." Shortly after the defendant took possession, the premises, which were old and dilapidated, were destroyed by fire. The jury found that the cost of rebuilding them would be 16357., but that they would be more valuable by 600l.:-Held, that the defendant was only bound to put the premises in the same state they would have been if he had repaired them before the fire, and consequently he was liable to pay as damages 10351. only. 1855. YATES บ. DUNSTER. defendant, and the defendant became tenant to the plaintiffs of the said messuage and premises, upon certain terms contained in certain letters written and delivered by the defendant to the plaintiffs, and by the plaintiffs to the defendant. The declaration then set out the following letter from the defendant to the plaintiffs:-"48, Upper Thames Street, London, 12th December, 1853.-Messrs. Yates & Co.-Gentlemen,-I hereby engage to become your tenant of the warehouse and small dwellinghouse, No. 200, Upper Thames Street and Bread Street Hill, for the period of fifteen months from this date, and to pay you the annual rental of 1107. quarterly, the first quarter to become due on the 25th March, 1854, and the last, 10th March, 1855, on which date I promise to give up possession to you; and further, to pay insurance on the premises and all rates and taxes from Christmas next. In making this tender, I beg you distinctly to understand, that, at the expiration of your term of lease with the parish of St. Giles without Cripplegate, I am to be held harmless by you from claim they may make for dilapidations made by you up to the present time; but I agree to maintain the premises in as good state as they will be when the agreed repairs by me are done.”The declaration then set out a letter from the plaintiffs to the defendant accepting those terms, and averred that the defendant had become tenant to the plaintiffs on those terms, and that the plaintiffs had done all things necessary, &c. to entitle the plaintiffs to have the messuage and premises kept and maintained in such repair as the defendant had agreed to keep the same.—Breach: non-repair. any Pleas-First, that the defendant did not become tenant, modo et forma: Secondly, that the defendant did repair:— Upon which, issues were joined. At the trial, before Pollock, C. B., at the London Sittings after last Michaelmas Term, it appeared that the plaintiffs were assignees, for the residue of a term of nine years, of a lease of a warehouse and dwelling-house in Upper Thames Street. The lease contained the usual covenant on the part of the lessees to keep the premises in repair during the term. The plaintiffs let the premises to the defendant on the terms contained in the letter of the 12th of December, 1853, set out in the declaration. Shortly after the tenancy commenced, the premises were accidentally destroyed by fire. At the time the defendant took the premises, they were old and dilapidated; and it appeared in evidence that the cost of rebuilding them would be 1635l., but that, when rebuilt, they would be more valuable by 600l. than if they had been repaired before the fire. An expense of 847. had been incurred in putting up a hoarding, &c. by order of the district surveyor. The defendant had insured the premises for 1000l. The learned Judge left it to the jury to say, first, what would be the cost of restoring the premises to the state in which the defendant undertook to place them; and secondly, what was the plaintiffs' loss from the destruction of the premises. The jury found that it would cost 1635l. to rebuild the premises, but that 600l. ought to be deducted if the defendant was bound to make good the plaintiffs' loss only, since the restoration would give them new premises for old. A verdict was accordingly entered for the plaintiffs, with 17197. damages (the 1635l. and 847.); and leave was reserved to the defendant to move to reduce the damages by 1000l., the amount of the insurance, and the 6001. Bramwell, in last Hilary Term, obtained a rule nisi accordingly; against which Phipson now shewed cause.-The only question is, whether the plaintiffs are entitled to recover, as damages, the amount which it would cost to rebuild the premises, or whether the defendant has a right to deduct 600l., the increased value of the premises when rebuilt. [Martin, B.- VOL. XI. C EXCH 1855. YATES V. DUNSTER. |