The Gazette 1914-15

[MAY, 1914

The Gazette of the Incorporated Law Society of Ireland.

8

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 was " executed," and secondly, he must establish by legal evidence that the execution had been " withdrawn by the person or persons at whose instance the sheriff was required to execute the same."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 Justice Madden decided that where a seizure has been made and has proved abortive, and has been withdrawn at the instance of the execution creditor or his solicitor, even though there be a return of nulla bona, in that case the sheriff's fees are payable.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

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