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8
The Gazette of the Incorporated Law Society of Ireland.
[MAY, 1914
sum of £2 14s. for costs, against J. Crennan,
•of Abbeyleix, in the county of Queen's
County. A writ of
ft. fa.
bearing date the
same day was duly lodged with the plaintiff
for the purposes of execution. Upon April 9,
1912, the plaintiff wrote to the defendants :
" I made repeated attempts to secure pay
ment of this but failed. Defendant has not,
beyond his working tools, any effects worth
seizing. He is neither able nor willing to pay.
I incurred
£1
Is. expenses, and on hearing
from you I shall make a return to the writ."
Upon May 24, 1912, the defendants replied,
•enclosing a copy of a communication dated
April 12, 1912, which they had received from
their clients, as follows :
" We acknowledge
your favour of the 10th and regret contents
of the letter from R. Bull, copy of which you
have sent us. It would appear to be useless
•doing anything further in this matter." A
protracted correspondence ensued between
the parties, the material points in which only
are set out in this report. The plaintiff
pressed for payment of
£1
Is. for his expenses,
and cited authorities in support of his con
tention that in the circumstances he was
entitled to receive that sum. Upon the other
hand, the defendants urged that they were
under no liability " for fees in this case in
which the return (to the writ) was
nulla
bona "
over and above the 2s. 6d. paid on
lodging the writ of
fi. fa.
Upon June 5, 1912,
the plaintiff wrote to the defendants a letter
which contained the following passage :—
" In this case I made a seizure, but the goods
were not of sufficient value to warrant me in
putting you to the expense of placing keepers
in charge, as I might have done, and I
therefore withdrew and claimed only expenses
out of pocket." Upon Dec. 8, ~1912, the
plaintiff pointed out :—" I am sure you will
note that the return was not
nulla bona,"
and the defendants, upon the following da}',
replied :—" Is it your case that if a sheriff.
instead of making a return ot ' no goods ' to
a writ, writes a letter stating that he cannot
recover the debt he is then entitled to fees
to which he would not have been entitled
had he made a return ?
If this is your point,
then we have been at cross-purposes the
whole time, as we all along were arguing upon
the assumption that the return was ' no
goods,' and that a sheriff on a return of ' no
.goods' was only entitled to 2s. (id. The
proposition that a sheriff by refraining from
making a return to a writ can entitle himself
to fees that he would not otherwise be
entitled to is quite novel to
us."
Upon
March 4, 1913, the plaintiff intimated that
he was about to file a return, which, he added,
would cost the defendants Is. 6d. more. The
return to the writ of
fi. fa.
was as follows :—
" By virtue of the within writ to me directed
" and delivered I seized on certain goods and
" chattels of the within named defendant on
" his premises at Abbeyleix, and certain of
" said chattels being claimed by third parties,
" and then others being of insufficient value
'' to meet the costs and expenses of keeping
" and selling the same, I abandoned said
" seizure ;
and I further return that said
" defendant had not any further effects in
" my bailiwick whereupon I could or can
" levy. So answers, &c."
Dodd, J.—In order to entitle the plaintiff
in this action to succeed in recovering the fees
sued for he must satisfy the tribunal upon two
points. He must first show that the writ of
fi. fa.
was " executed," and secondly, he must
establish by legal evidence that the execution
had been " withdrawn by the person or
persons at whose instance the sheriff was
required to execute the same." It has been
stated before me that Mr. Justice Gibson has
decided that in any case in which a return of
nulla bona
has been made there cannot have
been an " execution," and
Ryan
v.
Richardson
(25 Ir. L. T. R. 24) is cited for the
purpose of establishing that proposition. It
has also been stated that Mr. Justice Madden
has decided, in
Stevenson v. Moorehead and
Wood
(30 Ir. L. T. R. 139), that in every case
in which there has been a return of
nulla bona
there must have been an " execution." I do
not so interpret the decision of either judge.
Mr. Justice Gibson held that a writ cannot be
executed when there is nothing to seize, and
with that view I thoroughly concur. Mr.
Justice Madden decided that where a seizure
has been made and has proved abortive, and
has been withdrawn at the instance of the
execution creditor or his solicitor, even
though there be a return of
nulla bona,
in
that case the sheriff's fees are payable. He,
however, found as a fact that there was an
execution. I decide that a return of
nulla
bona
may be made where there has been an
execution and withdrawal, and I refer to the