1837.

SIEVEKING

v.

BEHRENS.

at all interfere with whatever may be the rights of the parties to the suit in this Court. The judgment in the Lord Mayor's Court must be dealt with as this Court shall direct. If Mr. Tinney's clients, Behrens and Fehling, ask for liberty to defend the attachments, there is no reason why they should not have it.

Mr. Tinney declined taking liberty to defend the attachments.

Some discussion arose upon the terms of the order; but, as it was ultimately drawn up, it stood thus:

"His Lordship doth order that the injunction, so far as it restrains execution, be continued until the further order of this Court; and the Defendants Heinrich Behrens and Johannes Christoph Fehling, electing by their counsel not to interfere in the now pending attachments against the Defendants Henry William Lebrecht Crusius and William Von Melle, respectively, in the Lord Mayor's Court, it is ordered that the Defendants Henry William Lebrecht Crusius and William Von Melle, respectively, be at liberty, in the name of Edward Henry Sieveking, to defend or oppose the attachment of the other, as they may be advised. And, after either or both of the said Defendants, Henry William Lebrecht Crusius and William Von Melle, shall have obtained judgment in the Lord Mayor's Court on the said attachments, it is ordered that either of them, or the said Heinrich Behrens and Johannes Christoph Fehling, respectively, be at liberty to apply to this Court as they respectively may be advised, when such further order shall be made as shall be just, all parties consenting to submit to the order of this Court in the matter. And this order is to be without prejudice to

any

any claim which the Defendants, Heinrich Behrens and Johannes Christoph Fehling, may have or set up to the funds in question in this cause."

Reg. Lib. B. 1836. fol. 388.

In pursuance of the liberty given by the last-mentioned order, Von Melle gave notice of trial of his attachment, in the Lord Mayor's Court, for the 14th of April 1837; and Crusius gave notice, for the same day, of an application to the Recorder, for judgment upon the special case reserved upon his attachment.

On that day the Recorder gave judgment against Crusius. Von Melle then proceeded to the trial of his attachment; and, it appearing in evidence that, at the date of the attachment, Sieveking had not in his hands any money of Beel and Witthauer, but that he had twenty-three bales of wool belonging to them, subject to a lien of 100%. in his own favour, Von Melle obtained a verdict and judgment of appraisement as to the bales; and the proper officer of the Lord Mayor's Court having then returned that the bales had been removed (having in fact been sold), so that they could not be appraised according to the custom of the city, a writ of inquiry as to their value was executed before the Recorder and a jury, when they were found to be of the value of 11397. 19s. 11d., from which having been deducted 100., the supposed amount of Sieveking's lien, a verdict was found for Von Melle against Sieveking, for the sum of 1039. 19s. 11d.; and for that sum judgment was entered up on behalf of Von Melle against Sieveking, according to the practice of the Lord Mayor's Court.

Sieveking did not attend any of the proceedings taken under the liberty given by the order of the 17th of March,

1837.

SIEVEKING

v.

BEHRENS.

March, being advised that it would not be proper for him to do so; and it appeared, by an affidavit subsequently made by him, that the amount of his lien exceeded 100%.

On the 17th of April, Behrens and Fehling put in their answer.

On the 28th of July, Von Melle moved, before the Lord Chancellor, that the injunction granted by his Lordship, so far as it restrained execution on the judgment, might be dissolved, or otherwise that the sum of 8771. Os. 5d., paid into Court by Sieveking, might be paid out to him (Von Melle) in part satisfaction of his judgment; and, at all events, that he might be at liberty to issue execution out of the Lord Mayor's Court against the Plaintiff or his effects, for the sum of 1627. 19s. 6d, being the difference between the sum of 8771. Os. 5d., and the sum of 10397. 19s. 11d.; or that the Court would make such order upon the footing of, and in furtherance of the order of the 17th of March, as might be just, as well in relation to the subject matter of the cause, as to the costs of and consequent on the application for the injunction, and the costs of the application upon which the order of the 17th of March was made, and of the present application.

Mr. Jacob and Mr. O. Anderdon appeared in support of the motion.

Mr. Tinney and Mr. Randell appeared on behalf of Behrens and Fehling.

Mr. Richards and Mr. Loftus Wigram appeared on behalf of Crusius.

Mr.

Mr. Wigram and Mr. Stinton appeared on behalf of the Plaintiff.

The following order was made upon this motion :

"His Lordship doth order that it be referred to the Master of the Vacation in attendance, to enquire and state what was due by the Plaintiff, Edward Henry Sieveking, in respect of the goods in the pleadings mentioned, at the time of his paying the sum of 8771. Os. 5d. into the Bank to the credit of this cause, making unto the said Plaintiff all just allowances, and deducting any balance which was due to him from Henry Diedrich Beel and Charles William Witthauer, in the pleadings named, at the date of the attachment of the said William Von Melle, in the Mayor's Court, in respect of any other dealings. And for that purpose the parties are to produce before the Master, upon oath, all books, papers, and writings," &c. "and to be examined upon interrogatories, as the said Master shall direct, who, in taking the said accounts, is to make to the parties all just allowances. And it is ordered that the said sum of 8771. Os. 5d., cash in the Bank, placed to the credit of this cause, be laid out in the purchase of bank 3 per cent. annuities, in the name and with the privity of the Accountant General of this Court, in trust in this cause. And the said Accountant General is to declare the trust," &c. "And for that purpose the said Accountant General is to draw," &c. "And any of the parties are to be at liberty to apply," &c. "And his Lordship doth reserve the costs of this motion, and of the enquiry hereby directed."

Reg. Lib. B. 1836. fol. 871.

The suit was afterwards compromised.

1837.

SIEVEKING

บ.

BEHRENS.

1837.

May 4.

A plea of pro- TE

ceedings in

THIS

BEHRENS v. SIEVEKING.

HIS was the suit which, in the report of the case of another Court Sieveking v. Behrens (a), has been already mentioned of competent to have been instituted by Behrens and Fehling against jurisdiction, Sieveking, on the 24th of December 1836.

must shew

not only that the same issue was joined as in the suit in this Court, but that the subject matter was the same, and that the proceedings in the other Court were

taken for the

The same Plaintiffs, at the same time, instituted a similar suit against two persons of the names of Pauli and Jones, in whose hands monies belonging to Beel and Witthauer had been attached by William Von Melle, and against Von Melle himself.

With reference to these monies, a bill of proof had same purpose. been filed in the Lord Mayor's Court by Behrens and Fehling against Von Melle, upon which proceedings had been taken, which were precisely similar to those taken upon the bill of proof filed by the same parties with reference to the monies attached in the hands of Sieveking, and which were attended by the same result, viz. a judgment in favour of Von Melle. Both in the suit of Behrens v. Sieveking, and in the suit of Behrens v. Pauli, the Defendant Von Melle put in a plea, stating the proceedings which had taken place in the Lord Mayor's Court, and insisting upon them in bar to the suit in equity. This plea was allowed by the Master of the Rolls in both suits. The argument and judgment at the Rolls upon the plea in Behrens v. Pauli are reported in the first volume of Mr. Keen's Reports. (b)

In the suit of Behrens v. Sieveking (which involved property of a larger amount than the suit of Behrens v Pauli),