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1822.

LOPES

Willisv. Peckham(a), and Moor v. Adam(6). With respect

to the sum charged by the plaintiff for postages, it was DE TÄSTET. most properly disallowed, as the greater part of it related

to a former trial between the parties; and as to the sum claimed by the foreign witness, it does not appear

that it has been paid to him, or that he has ever received it; and besides, be is still domiciled in this country.

Mr. Serjeant Lens and Mr. Serjeant Hullock, in support of the plaintiff's rule, contended that the rule laid down in the case of Penson v. Lee was inapplicable to the present, and ought not to be too rigidly adhered to. This was not the ordinary case of an action of trover, where the plaintiff had only to prove a possession and conversion; but the whole of his declaration was so framed as to shew the nature of the transaction which had subsisted between him and the defendant, and in which he sought to establish the contract entered into by the latter, and for the breach of which the action was brought. It was absolutely necessary for him to go into the whole of the case, to shew the misfeazance of the defendant; and he was therefore obliged to require the attendance of witnesses, to endeavour to substantiate each particular fact, as well as the nature of the special injury he had sustained. Although the contract was illegal, and not in point of strictness, proved, yet the verdict must be taken to apply to all the antecedent transactions between the parties. At all events, the plaintiff should have been allowed the costs of witnesses, and other expenses incurred by him in support of the special allegations contained in the counts in trover, which ought not to have been severed or disunited :-and the rule in Penson v. Lee relates only to cases where the plaintiff may have succeeded on one or more of several counts, and not on a part

(a) Ante, Vol. IV. 300.-(6) 5 Maul. & Selw. 156.

125

of a count only. Besides, in the former cases of Brydges

1822. v. Raymond (a), and Norris v. Waldron (b), a different LOPES doctrine prevailed. As to the allowance for the produc- De Tastet. tion of letters and other documents, although it was strictly in the province of the Prothonotary, yet the plaintiff was called on by the defendant to furnish them, not as forming part of his own case, but for the sole benefit of the latter, who alone could profit by their production. So the postage and translation of those letters were necessary expenses in the cause, and the former, at all events, ought to have been allowed on taxation. No case has decided that a broker is not entitled to a remuneration for loss of time, although such allowance seems Dow to be confined to professional and medical men': and under all the circumstances, the plaintiff is entitled to the allowance of the greater part of those costs which were refused him on the taxation.

At the conclusion of the argument, the Court called on Mr. Prothonotary Watlington to state the grounds and principles on which he had proceeded between the parties.

He observed, that he had taken the rule laid down in the case of Penson v. Lee, as his governing principle ; and confined the plaintiff's costs to those parts of the counts in trover on which the verdict was found for him generally at the trial; and that in the estimation of such costs he had only calculated the costs of the correspondence and witnesses as were applicable to the point on which the verdict stood, viz. the value of the ship and cargo. That he considered, as the plaintiff failed to prove or establish the special damage contained in those counts, and as it was expressly negatived by the finding of the jury, the proper mode of allowance would be, as if

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1822.

he had recovered on the general counts in trover only; LOPES and that he severed them accordingly. That he had alDE TASTH. lowed the expenses of the production and translation of

such letters as were applicable to those parts of the counts only, and rejecled all those which were referrible to the special counts, as well as the special damage: that he had allowed sixteen guineas to brokers for their loss of time, as he had been in the habit of doing so previously to the decisions in the cases of Willis v. Peckham, and Severn v. Olive; and that he was not aware that they would have a retrospective opération in this respect. That with respect to the plaintiff's claim for the postages of foreign letters, and which amounted to 1961., he had disallowed them altogether, although the sum of sixteen guineas was sworn to have been paid for letters which were ap plicable to this cause alone. That he had disallowed the expenses of the return of several of the foreign witnesses, as they were domiciled in this country, and had no intention of returning at the time of the taxation; and that he had disallowed part only of the sum of 5231. demanded by the witness who came to prove the value of the ship, as he swore that he came over for that express purpose; but that as he intended to stay in this country he refused to allow him the charge made for his returh to Portugal; and that it did not appear that the sum, claimed by him, had been paid to him, either by the plaintiff or his attorney.

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Cur. Adv. Vult.

Lord Chief Justice Dallas on this day delivered the judgment of the Court as follows :

It appears to us, that the Prothonotary in this case has exercised a most correct and sound discretion; and that he most properly adopted the rule laid down in Penson v. Lee, in wbich the practice of this Court was made conform.

18.2.

able to that of the Court of King's Bench. We have fully considered all that was urged at the bar, as well as Lores the able explanation given by the Prothonotary himself; De TÄSTET. and he appears to have discharged bis daty, under the most difficult circumstances, not only with ability to himself, but to the perfect satisfaction of the Court Still, however, it may be proper that his taxation may be corrected merely in a nominal degree, viz. the sum of sixteen guineas allowed for the attendance and loss of time of the brokers ought not to have been allowed : that therefore must be struck out of the plaintiff's costs. But, on the other hand, the sum of sixteen guineas, sworn to have been paid by him for the postage of foreign letters, which were solely applicable to this cause, ought to have been allowed. In every other respect the report be has made to the Court appears to be perfectly correct; and it is therefore only necessary to modify it as above stated.

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PADFIELD O. BRINE,

Saturday,

May 18th. Mr. Serjeant Lens, on a former day in this Term, ob- The Court re

fused to order tained a rule to shew cause why the sheriff of Somerset a sheriff to reshould not be ordered to retain in his hands the sum of tain in his

hands, for the 5331. 8s. 5d. for the use of the plaintiff; being the pro- use of the

plaintiff, money ceeds obtained by him under a writ of fieri facias, issued which he had against one Hippesley, at the suit of the defendant. He levied under an

execution at founded his motion on an aflidavit, which stated, that the suit of the

defendant, the plaintiff had recovered damages in an action for an against J. s., assault, brought by him against the defendant for 1132l. execution suband taken out execution for that sum ; that the sheriff sequently sued

out by the had returned, that he had only been able to levy on the plaintiff against

the defendant. effects of the defendant to the amount of 50l.; but that he had the above sum of 5331. 8s. 5d. in his hands, as the fruits of the devy at the suit of the defendant against

1822.

PADFIELD

BRINE.

Hippesley. He relied on the case of Armistead v. Philpot (u), where it was determined, that if a plaintiff cannot tind sufficient effects of the defendant to satisfy his judgment, the Court would order the sheriff to retain for the use of the plaintiff, money which he has levied in another action at the suit of the defendant.

Mr. Serjeant Pell afterwards shewed cause, on an affidavit stating, that the money alleged to be in the hands of the sheriff, did not belong to the defendant, as he had assigned all his interest in a warrant of attorney given him by Hippesley, and on which execution was taken out, to certain trustees for the benefit of his children; and which assignment was made and executed previously to the verdict found against him at the suit of the plaintiff.

The Court, thinking that there were strong grounds to suspect that the assignment was made in anticipation of the verdict, required an affidavit, stating the day of its execution, and the consideration for which it was made; and they also suggested that such affidavit should particularly detail all the circumstances of the transaction,

The learned Serjeant on this day contended that the application could not be supported on principle. That the case of Armistead y. Philpot was not to be considered as an authority, as the application was not resisted; and the rule was made absolute, subject to a qualification. Even if it were, the case of Fieldhouse v. Croft (6) is in direct contradiction to it; where it was beld, that money, the surplus of a former execution between the same parties, could not be staid in the hands of the sheriff, to answer a second execution, although there were no other effects: And Lord Ellenborough there said, “the question comes to this whether a plaintiff can have execution of inoney

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