entitled to the property in certain Caen stone, which was in the hands of a third party. The issue was framed in the ordinary form of a pretended wager, instead of the form given in the second schedule to the above act. It was tried before Maule, J., at the London sittings during the present Term, and a verdict found in favour of the plaintiffs, with one shilling damages. It would be seen by the 8 & 9 Vict. c. 109, s. 18, that all wagers were positively prohibited, and by sect. 19, a new form of feigned issue was provided. [Cresswell, J.-Of what advantage will it be to arrest the judgment. Suppose the contract for 107. to be void, that is of no consequence, as no one is going to enforce it. The issue is merely to try a pretended wager. Suppose it is void, then the Judge has only taken the opinion of the jury as to the property of the goods. No writ of error will lie to a judgment on proceedings on an issue under the Interpleader Act. That was decided in the Exchequer Chamber in the case of King v. Simmonds and Others (a). Besides, the parties have consented to this mode of proceeding.] But the provisions of the 8 & 9 Vict. c. 109, had rendered this form of issue illegal, and provided a different one. The application, therefore, perhaps ought to be to stay proceedings on the issue. TINDAL, C. J.-This is no real wager, and, therefore, does not come within the meaning of sect. 18. Then sect. 19 merely provides, that "it shall be lawful for such Court to direct a writ of summons to be sued out," &c. The section, therefore, is merely permissive, and does not oblige the parties to adopt the form given in the second schedule, nor does it deprive the Court of its power to direct such an issue to be tried in the form previously in use. I think, therefore, there ought to be no rule. CRESSWELL, J., COLTMAN, J., and ERLE, J., concurred. Rule refused. (a) Judgment delivered on the 9th of May, 1845; reported in 14 Law Jour. N. S. Q. B. 248. 1846. ROCK v. ADAM and Another. granted a of proceeding KINGLAKE, Serjt., moved for leave to issue a distringas The Court for the purpose of compelling an appearance by the distringas for defendant. The affidavit on which the application was the purpose founded stated that the writ of summons was directed to to outlawry the defendant at his place of business, and that the usual which disclosed calls and appointments had been made on and with a clerk attempts to there. It also stated, that on inquiries being made of the clerk where the defendant resided, he stated that his master on an affidavit serve the de fendant at his place of business, and the leaving a copy with a clerk, and also that not be dis was out of town, and that his return to London was un- of the process certain, but that he had been in town at a time which was antecedent to the issuing of the writ. It was also sworn the defendant's place of resithat three different places had been mentioned to the dence could deponent as those of his occasional abode, but that no covered. tidings of him could be obtained at any of them. The affidavit then stated several circumstances to induce the deponent to believe that the defendant had been in town, since the inquiries concerning him had been made. He cited Grindley v. Thorn (a), where the Court granted a writ of distringas to compel an appearance, although the defendant's residence could not be discovered, the usual calls and appointments having been effected at his two last known places of abode, and on an agent for the receipt of his rents, and who stated that he was in communication with his principal. In Nugee v. Swinford (b), where an application was made for a distringas to proceed to outlawry, the Court said, as it was apparent the defendant was in the country, the application should be to compel an appearance, and not to proceed to outlawry; and observed, that "although the defendant's residence may be unknown, yet it should be shewn that inquiries have been made in order to ascertain it." Here, such attempts had been made, and, therefore, the circumstances came within the principle (a) 5 Dowl. 544. VOL. III. GG G (b) 9 Dowl. 1038. 1846. ROCK v. ADAM and Another. of the case cited. [Cresswell, J.-In Grindley v. Thorn (a), the Court treated the last place of abode as the defendant's continuing place of abode.] TINDAL, C. J.-I think the affidavit states sufficient to entitle the plaintiff to a distringas for the purpose of proceeding to outlawry, but not for a distringas to compel an appearance. You may, if you think proper, take a distringas for the purpose of proceeding to outlawry. (a) 5 Dowl. 544. (b) The rule was redrawn up. Rule accordingly (b). See Ceal v. Cockburn, 7 Scott, Two persons executed a warrant of attorney, by which they authorized certain attorneys to appear "for us and each of us," and to receive a declaration "for us and each of us in an action of debt," &c., and to confess the same action, or else to suffer judgment, &c. to pass "against us," and to be thereupon entered up against us 64 and each of us," and after the said judg ment shall be DALRYMPLE v. FRASER and Another. BYLES, Serjt., shewed cause against a rule nisi obtained by Dowling, Serjt., for leave to sign judgment against the defendant Dawes, on a warrant of attorney, in the following form: "To T. J. C. and W. H. N., attorneys of her Majesty's Court of Common Pleas at Westminster. These are to desire and authorize you, the above-named, or any one of you, or any other attorney of the Court of Common Pleas at Westminster aforesaid, to appear in the same Court for us and each of us, Hugh Fraser, of, &c., and Wm. Dawes, of, &c., and then and there to receive a declaration for us and each of us, in an action of debt for the sum of 1307. for money borrowed, at the suit of Elizabeth Dalrymple, and thereupon to confess the same action, or else to suffer judgment by nil dicit or otherwise, to pass against us in the same action, and to be thereupon forthwith entered up against us and each of us of record of the said Court, for the said sum of 1301. And we, the said Hugh entered up as aforesaid, "for us and in our names, and as our act and deed," to execute a release of errors. On an application to enter up judgment against one of the defendants, the Court held the warrant joint, and not joint and several, and therefore refused a rule for that purpose. 1846. DALRYMPLE v. FRASER Fraser and Wm. Dawes do hereby further authorize and empower you the said attorneys, or any one of you, after the said judgment shall be entered up as aforesaid, for us, and in our names, and as our act and deed, to sign, seal, and Another. and execute a good and sufficient release in law to the said Elizabeth Dalrymple, her heirs, executors, and administrators, of all and all manner of error and errors, writ and writs of error, and all benefit and advantage thereof, and all impressions of error and errors, defects and imperfections whatever had, made, done, suffered, or to be had, made, committed, done or suffered in, about, touching or concerning the aforesaid judgment, or in, about, touching or concerning any writ, warrant, process, declaration, plea, entry, or other proceeding whatsoever, of or any way concerning the same." An application had been made at Chambers before Erle, J., with the same object, it being sworn that the defendant Fraser had been transported for forgery to Norfolk Island for the term of his natural life. His Lordship was however of opinion, that the warrant was joint only, but referred the parties to the Court. In pursuance of this intimation, the present rule nisi was obtained. The question for the opinion of the Court was, whether the warrant was joint, or several, as well as joint. It was submitted that it was joint only. If the words of the instrument were considered, the parties must clearly have contemplated one action only. If so, then they must be treated as having intended to give only a joint authority. The distinction between a joint and several, and a joint liability, was well laid down in the late case of King v. Hoare (a). Parke, B., in delivering the judgment of the Court there said, "the distinction between the case of a joint contract and a joint and several contract is very clear. It is argued, that each party to a joint contract is severally liable; and so he is, in one sense-that, if sued severally, and he does not plead in abatement, he is liable to pay the (a) Ante, vol. 2, p. 389; S. C. 13 M. & W. 505. 1846. --- DALRYMPLE v. FRASER entire debt; but he is not severally liable, in the same sense, as he is on a joint and several bond, which instrument, though on one parchment or paper, in effect comprises the and Another. joint bond of all and several bonds of each of the obligors, and gives different remedies to the obligee." But the warrant of attorney here only spoke of "an action of debt." There was nothing to shew that the parties contemplated any more than one action. Then the question was, what was the meaning of "an action of debt," in which, judgment is to pass "against us." In Gee v. Lane (a), where a similar application to the present was made, the words of the warrant were "to appear for us John Lane and Wm. Gee, and to receive a declaration for us in an action of debt ;" and there Lord Ellenborough said, "an action to be brought against us,' must mean a joint, action." This was an authority directly in point. With respect to the words "and each of us,” they did not necessarily give a power to sign a several judgment, as they might be satisfied by a separate attorney appearing for each of the defendants in a joint action. He also cited Raw v. Alderson (b), in which it was held, that if two give a warrant of attorney to confess judgment against them, and one dies, judgment cannot be entered up against the other. Dowling, Serjt., in support of the rule. No doubt, if the warrant of attorney was clearly joint only, a several judgment could not be signed in pursuance of it. But the question was, whether the present warrant must not be construed both as joint and several; the words "and each of us" could not be discarded as surplusage, and if not, then a reasonable meaning must be attributed to them. The only reasonable meaning which could be attributed to them was to render the warrant of attorney several as well as joint. The construction sought to be put upon those words by the other side was unreasonable, because the language of the (a) 15 East, 592. (b) 7 Taunt. 453; S. C. 1 Moore, 145. |