1887 DUFFUS v. goods were duly appraised and left in the possession of Spinney. After the attachment other creditors issued attachments against the goods, but Spinney having in the CREIGHTON. meantime filed his bill of sale, concluded to resist them, and employed the plaintiffs' solicitor for that purpose, Spinney agreeing to waive any opposition to plaintiffs' attachment and another levied before the filing of the bill of sale. The attachments ripened into execution in all the cases, and the goods were advertised and sold under them, but the proceeds were paid over to the holders of the subsequent attachments, who indemnified the sheriff. The sole question at the trial was whether the plaintiffs had abandoned their attachment. The learned judge who tried the cause held that the plaintiffs were estopped by the conduct and language of their attorney from saying that they had not abandoned, and the Supreme Court of Nova Scotia en banc being divided in opinion, the appeal from the trial judge was dismissed. The plaintiffs then appealed to the Supreme Court of Canada. Russell appeared for appellants. Gormully, Q.C., appeared for respondent. All the members of the court were agreed to allow the appeal. The only reasons for judgment delivered were those of GWYNNE J.-The plaintiffs sue the sheriff of the county of Lunenburg for moneys in the hands of the sheriff, which they claim to be entitled to in virtue of a writ of attachment executed by the sheriff upon the goods of one McKean at the suit of the plaintiff and a writ of execution placed in the sheriff's hands upon a judgment recovered in the suit in which such writ of attachment had issued. The only issue which the parties went to trial upon was one joined upon a plea of the defendant to the following effect, 1887 DUFFUS Gwynne J. namely:--The defendant says that on the 23rd day of March, 1884, or thereabout, the plaintiffs caused to be delivered v. to him what purported to be a writ of attachment issued CREIGHTON. out of the Supreme Court of the county of Lunenburg at the suit of said plaintiffs; that he forthwith thereunder at the request and under the direction of the solicitor of the plaintiffs, levied upon certain goods and chattels, etc., then in the possession of one Spinney, and which he claimed to be his goods; that after the said defendant had attached, appraised and levied upon said goods the solicitor of said plaintiffs directed said defendant to abandon the same and to deliver the same up to Spinney, and stated to defendant that the goods so attached were the property of Spinney and not of McKean, and defendant thereupon abandoned said levy and delivered the goods up to Spinney. The plea alleges other writs of attachment at the suit of other creditors, namely, one named Esson, and another named Taylor, against the said McKean, by virtue of which the sheriff seized again the same goods, and the proceeding of such creditors to judgment and execution in their actions and the sale of the goods so attached as last mentioned under the said last mentioned executions, and the payment of the amount realized at such to the said last mentioned creditors. At the trial the sheriff's return on the attachment issued at the plaintiffs' suit was produced whereby he returned that on the 29th March, 1884, in obedience to the command of the within writ I served a copy of the within by leaving it at the last place of residence of defendant herein, and, at the same time, attached the personal property of defendant as per appraisement and inventory annexed, fees (items amounting to) $8.30. The deputy sheriff who executed the writ of attachment left the goods so attached in the possession of Spinney, taking from him the following paper: P. McGuire, Esq., Deputy Sheriff. March 29th, 1884. I hereby undertake and agree that all the goods and chattels levied upon or attached this day by you at suit of John Duffus et al. ▼. Stephen D. McKean will be by me held intact until such time as you may choose to make full list and seek to take charge of the same (without prejudice to my interest). Yours truly, (Sgd.) O. SPINNEY. This was done with the consent of the plaintiffs' solicitor. It was admitted at the trial that the only question to be tried was whether the plaintiffs had abandoned the attachment so made. Upon this issue alone the plaintiffs' right to recover depended. The learned judge before whom the case was tried without a jury, found the issue on the above plea in favour of the defendant upon the ground that, in his opinion, the plaintiffs were estopped by the conduct and language of their attorney to deny the abandonment. The Supreme Court being divided in opinion as to the correctness of this verdict, the question now before us is whether it can be sustained. The contest is substantially between the plaintiffs and the subsequent attaching creditors-Esson and Taylor, upon whose indemnity the sheriff has proceeded. The question is not one of estoppel, for no such question is raised by the issue; and no facts are pleaded out of which an estoppel could arise. The question simply is whether the evidence is sufficient to justify the conclusion in point of fact that the plaintiffs had abandoned the seizure under their attachment. It is not alleged or pretended that the plaintiffs' solicitor did ever, in fact, direct the sheriff (as is alleged in his plea) to abandon the seizure made by him under the plaintiffs' writ of attachment. All that the sheriff him self says is, that subsequently to his receiving from his deputy the above agreement addressed to him and signed by Spinney, the plaintiffs' solicitor never gave him any further instructions to proceed in the matter. The deputy sheriff also says that after the writ of attachment was executed by him the plaintiffs' solicitor never gave him any further directions to proceed in the matter; but he admits 6 SUP. CT. CAS. 1887 DUFFUS v. CREIGHTON. Gwynne J. 1887 DUFFUS Gwynne J. that shortly after he had executed the writs of attachment of Esson and Taylor the plaintiffs' solicitor said to him บ. that there were only goods enough for Duffus and Boliver. CREIGHTON. He also admits that he once asked the plaintiffs' solicitor if he had abandoned the attachment of the plaintiffs, and that he replied that he had not and that he did not intend to do so. The solicitor, who was also examined as a witness, said, upon this point, that after the writs of attachment at suit of Esson and Taylor, but before removal of the goods, the deputy sheriff told him that a Mr. Hunt had written to him to say that Duffus's claim had been paid and that they had abandoned their attachment, and that the deputy sheriff asked him (the plaintiffs' solicitor) if such was the case, to which he replied "No, that Duffus had not been paid anything and that they had not abandoned, and had no intention of doing so." It is clear, therefore, that no order was ever given by the plaintiffs' solicitor to the sheriff to abandon the seizure made by him under the plaintiffs' attachment; it only remains to consider whether any conduct of the plaintiffs' solicitor constituted an abandonment in fact of that seizure. That the sheriff executed the plaintiffs' writ of attachment on the 29th March, when the goods attached were left in the hands of Spinney under his agreement of that date, cannot be disputed in this action. The sheriff is concluded by his return upon the writ, which appears to have been made by him on the 4th April, 1884. Between that date and the 7th April, when the writs of attachment at the suit of Esson & Co. and Taylor against McKean were placed in his hands to be executed, nothing appears to have taken place in the nature of an abandonment of the writ of attachment of the present plaintiffs. Neither does anything of that nature appear to have taken place between the 7th and 14th April, when the writs of attachment, placed in the sheriff's hands on the 7th April, were executed by him. The plaintiffs proceeded to judgment and placed a writ of execution issued thereon in the sheriff's hands, but writs 1887 DUFFUS v. Gwynne J. of execution at the suit of Esson & Co. v. McKean and of Taylor v. McKean came to his hands first. The sale took place after the plaintiffs' execution had come to the sheriff's CREIGHTON hands, and the deputy sheriff, in his evidence, admits that he told the plaintiffs' solicitor that the sale should take place under all the executions. Now, upon this evidence, it appears not only that there is no foundation for the allegation in the plea upon which the defence of the defendant was rested, namely, that after the seizure under the writ of attachment the sheriff was ordered by the plaintiffs' solicitor to abandon that seizure, and that, therefore, he had done so, but the evidence also shews that the plaintiffs' solicitor never had, in fact, any intention to abandon the seizure under the plaintiffs' attachment, and that he had so informed the sheriff through his deputy; and so the plea upon which alone the defence was rested was not proved, but on the contrary was disproved. However, it was argued that, nevertheless, an abandonment had, in fact, taken place, which was evidenced, as was contended, by the fact of the goods, after having been seized under the attachment, having been left in the hands of Spinney under his agreement of the 29th March with the consent of the plaintiffs' solicitor, and on the further fact that the gentleman who was the plaintiffs' solicitor in sueing out the writ of attachment acted as solicitor of Spinney in an action brought by him against the sheriff for the seizure made by him under the writs of attachment issued at the suit of Esson & Co. and of Taylor v. McKean. Now as to the good attached at the suit of the plaintiffs having been left in the hands of Spinney under his agreement of the 29th March with the assent of the plaintiffs' solicitor, it is to be observed, 1st, that the sheriff is concluded from raising this point as a defence in bar of the present action by his subsequent return of the writ on the 4th April, 1884, that he had executed the writ and had levied under it as he was thereby required to do; and, 2ndly, the explanation of that transaction given by the plaintiffs' |