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claim made; anything short of a claim will not do. A claim founded upon a lien has been held sufficient; a claim of part is enough. Applications, under this statute, are not as of course. It is the duty of the Sheriff to make some inquiry before he applies for relief. He is not to be spared all trouble, and to abstain from making all inquiry; when conflicting claims are advanced on which he cannot decide, he may then apply. The goods, or money in dispute, must be actually in his hands at the time of his application to the Court, to entitle him to relief. The Court will protect the Sheriff only from the original seizure, and not from any subsequent misconduct; or, he may be relieved in respect of the adverse claims, and left liable for his negligence in executing the writ.h Though the claimant be an infant, the Sheriff may be relieved. Whether the process issued out of any of the Courts at Westminster, or out of the Palatine Courts, relief may be granted;k and granted, as well after as When not. before action brought against the Sheriff.' The Court, however, will not relieve the Sheriff, under this Act, where he has paid over the proceeds of the execution to the judgment creditor, (though he had no notice of any claim until after he had paid over the money ;" and may be willing to bring a similar amount into Court;°) nor where he has delivered any part of the goods to the claimant ; nor where he has accepted an indemnity. The Act does not apply to conflicting executions; nor where the resistance is to the writ itself;s nor when he has seized goods in execution which were under a distress for rent, for it is the duty of the Sheriff to inquire whether the rent is due, and if it is, to satisfy it ; nor when he withdraws from possession on a claim being set up; nor when, at the request of either party, he delays his application, and by that delay affects the relation of parties. So, if the Sheriff have any interest, or, if his Undersheriff have any, relief will not be granted, although the
When Sheriff will be
Sheriff swears that he does not collude with him. So, where an Under-sheriff, who was acting as attorney for certain creditors of the defendant, informed them of a writ of fi. fa., at the suit of the plaintiff, having been placed in his hands to execute, by which means the issuing of a fiat in bankruptcy was accelerated, and the plaintiff's execution thereby defeated, the Sheriff was refused relief. Neither can the Sheriff have relief when the claim is merely equitable. The Crown cannot be made a party to an interpleader rule; d nor can a foreigner residing abroad be compelled to come in. The Act contains no clause to prohibit the Sheriff from applying to the Court, as before, to enlarge the time for making his return; and, when he is not relievable under the statute, he may move the Court for that indulgence. The application may be to the Court or to a judge Application, in chambers; if made to the latter, the Court cannot review to whom his order as regards costs.h The application must be made promptly, or within a reasonable time after the claim is made. Time for A reasonable time means, if the claim be made in vacation, time making. sufficient to enable the other parties to show cause in the term next after the claim is made. In one case, it was said that the Sheriff would not be safe unless he applied within the first four days of the term. If made in term, it should be made so as to allow the other parties time to appear the same term if possible; any delay on his part must be accounted for in the first instance. If the Sheriff cannot come at once to the Court, being delayed by a rule of Court staying proceedings, it is his duty to watch the rule, and come within four days after it is discharged, if other parties would, by his so doing, be enabled to appear in the same term.m The affidavit in support of the Affidavit. application, should state the seizure of the goods by the Sheriff under the execution;" that they or the proceeds (as the case may be) are, at the time of the application, in his hands; that a claim has been made; P that in consequence of such claim he does not know to whom the goods or proceeds belong, or to whom he is liable, and that he is ready to pay into Court, or dispose of the subject-matter of dispute in such manner as the Court may order and direct. Where there is any delay, it must
Appearance, &c., of par
ties on rule.
be accounted for by affidavit in the first instance, for no supplemental affidavit is allowable on showing cause.a The Sheriff need not deny collusion with any of the parties; nor state that an application has been made either to the execution creditor or to the claimant for an indemnity.c It is not necessary for an execution creditor, appearing on a motion under this Act, to produce an affidavit;d but the nature and particulars of the claim should, it seems, be authenticated on oath.e
In the Q. B.
A. B. and C. D. G. P. of in the county of officer to the Sheriff of maketh oath and saith that under and by virtue of a writ of fieri facias directed to the said Sheriff commanding him that he should &c. (as in writ) and indorsed to levy the whole besides and by virtue of a warrant of the said Sheriff granted on the said writ he this deponent did on the day of instant seize certain then being in the dwelling-house of the said defendant situate at M. within the bailiwick of the said Sheriff and that the said goods chattels &c. now are in the possession of the said Sheriff. And this deponent further saith that on or about the day of instant he this deponent was served with a written notice of which the following is a true copy [copy the notice]. And this deponent further saith that he has made all possible inquiry into the nature of the said claim and is not able to determine to whom the said goods or chattels belong and he further saith that the above-named plaintiff insists upon the same being sold by the said Sheriff.
a Cook v. Allen, 2 Dowl. 11.
b Donniger v. Hinxman, 2 Dowl.
Levy v. Champneys, 2 Dowl. 454.
No one has a right to be heard, unless he be called on by the rule or summons, though he be, in fact, a claimant; and if he be called in one character, he cannot appear in another.f The claimants may appear without taking office copies of the affidavits on which the rule was obtained. Affidavits on showing cause may be sworn at any time before cause is shown.h When a new claim is raised, after a rule nisi obtained, the Sheriff may make the new claimant a party to the rule, and the Court will enlarge the rule, until the other claimant consent. If the claimant has sustained any special damage by a sale of the goods, or the like, it must be distinctly brought before the Court or the Judge at the time the rule or order is made. The rule or summons is either discharged, in which case the Sheriff is entitled to a reasonable time to return the writ before an attachment can issue; or, one or more issues are directed to be tried, in which case who is to be plaintiff and who defendant on the record, what admissions are to be made by the defendant, are in the
f Clarke v. Lord, 2 Dowl. 55; but see Ibbotson v. Chandler, 9 Dowl. 250. & Mason v. Redshaw, 2 Dowl. 595. h Braine v. Hunt, 2 Dowl. 391. i Kirk v. Clark, 4 Dowl. 363.
Abbott v. Richards, 3 D. & L. 488. Rex v. Sheriff of Hertfordshire. 5 Dowl. 144; 2 Har. & Wol. 122.
discretion and ordering of the Court or Judge, as may best suit the justice of the case; in general, the claimant is plaintiff and the execution creditor is defendant. The goods are commonly ordered to be sold, and the money brought into Court, to abide the event. An execution creditor's claim may be barred by the Court, as well as that of an adverse claimant.b If the Sheriff and the judgment creditor appear, the former to support his rule, the latter to resist the adverse claim, and the adverse claimant does not appear, the Sheriff's rule is made absolute, and the adverse claimant is barred as against the Sheriff. An execution creditor, when made defendant, may be compelled to give security for costs, as when he resides out of the jurisdiction of the Court, or is insolvent. If the rule be discharged or summons dismissed, the Sheriff is allowed a reasonable time to return the writ, before an attachment can issue against him. Without the consent of both the execution creditor Summary and the claimant, neither the Court nor Judge has power to settlement. dispose of the case summarily. In the case cited, the summary jurisdiction was objected to by the execution creditor; an issue was then directed to try the matter in dispute, the execution creditor being made plaintiff. When disposed of in a summary way by consent of parties, the judge's award is final.o
In the Court of Q. B. [" C. P." or "Exch." or in any inferior Court, as the case may be.]
Middlesex to wit [or such other county as may be directed:] Whereas A. B. affirms and C. D. denies [here state fully the fact or facts in issue] and the Lord Chancellor Lor such other Court &c.] is desirous of ascertaining the truth by the verdict of a jury and both parties pray that the same may be inquired of by the country. Now let a jury &c.
Or the assignees of the said C. B. affirm and the said J. P. denies that they were as such assignees upon the said C. B.'s being adjudicated bankrupt entitled to the said goods as against the said J. P.i
If a rule or order directing the trial of an issue become useless, the Court may discharge it. The costs of all the proceedings Costs.
a Bramidge v. Adshead, 2 Dowl. 59. b Donniger v. Hinxman, 2 Dowl. 428; Ford v. Dilly, 5 B. & Ad. 885; Perkins v. Benton, 3 Tyr. 51; Eveleigh V. Salsbury, 3 Bing. N. C. 298.
c Bowdler v. Smith, 1 Dowl. 418. d Williams v. Crossling, 4 D. & L. 660; Deller v. Prickett, 15 Q. B. 1081. e R. v. Sh. of Hertfordshire, 5 Dowl. 144.
f Curlewis v. Pocock, 5 Dowl. 381. Shortridge v. Young, 12 M. & W. 5; Harrison v. Wright, 13 ib. 820.
This form is given by the 8 & 9 Vict. c. 109, but the adoption of it is not compulsory, Luard v. Butcher, 2 C. B. 858. An issue under the In
terpleader Act is solely for the pur-
iBelcher v. Patten, 6 C. B. 618.
are in the discretion of the Court or the Judge. In the exercise of that discretion, they have laid it down, as a general rule, that if the execution creditor does not appear, he must pay the claimant's costs; if the claimant does not appear, he must pay the execution creditor's costs, but not the Sheriff's. Indeed, as regards the Sheriff, he is not, in general, allowed costs; the reason, generally, assigned for this is, that he is not bound to come to the Court, and if he prefers doing so to taking an indemnity, that is no reason why he should have costs; besides, it is considered, that the statute is of itself sufficiently beneficial to Sheriffs; a better reason may, possibly, be drawn from the practice on applying to the Court to enlarge the time for making his return, when no costs are allowed him; but if he be brought improperly before the Court, the costs of his application for relief will be allowed him. If both the execution creditor and the claimant fail to appear, the Court orders the Sheriff to sell so much of the goods as will defray his poundage and expenses, and to abandon the remainder; and, in addition, protects him from all actions in respect thereof. Where all parties to the rule appear, and no blame appears to attach either to the execution creditor, to the claimant, or to the Sheriff, each party bears his own expenses of the application.s As the Sheriff is not entitled to receive, so is he not, in general, liable to pay costs, if he act fairly. But if he do not act fairly, or be guilty of any laches in making his application, as to time, giving notices, or the like; or, if he make no inquiry into the nature of the claim set up; or, if he do not pay the landlord his rent, after proper notice, the Court will make the Sheriff pay the costs of the application, and likewise the costs of any security ordered to be given. Such expense as he may incur, as agent of the parties, after his application, will be allowed ;m and any extra expense he may have been put to by obeying the rule of Court directing an issue. So, where the parties come to an arrangement, after an order made under the statute, the Sheriff will be paid, if there be anything to show that their conduct was vexatious. But costs incurred by keeping possession, in con
a 1 & 2 Will. 4, c. 58, s. 6, and 1 & 2 Vict. c. 45; Carr v. Edwards, 8 Dowl. 30; Lewis v. Holding, 3 Sc. N. R. 191.
b Beswick v. Thomas, 5 Dowl. 458; Tomlinson v. Done, 1 Har. & Wol. 123.
c Bowdler v. Smith, 1 Dowl. 418; Bryant v. Ikey, ib. 428; Perkins v. Benton, 3 Tyrw, 51; Towgood v. Morgan, ib. 52 n.
d Jones v. Lewis, 8 M. & W. 264. e Ibid.; also West v. Rotherham, 2 Bing. N. R. 527; 2 Scott, 802; Thompson v. Sheddon, 1 Scott, 697; 1 Hodges, 92; Bryant v. Ikey, 1 Dowl. 430.
Eveleigh v. Salsbury, 5 Dowl. 369. Morland v. Chitty, 1 Dowl. 520; Clarke v. Lord, 2 Dowl. 55; ib. 222,
337; Thompson v. Sheddon, 1 Scott, 697; 1 Hodges, 92.
h Clarke v. Lord, suprà.
i Bland v. Delano, 6 Dowl. 293; Alemore v. Adeane, 3 Dowl. 498; Beale v. Overton, 5 Dowl. 599; Braine v. Hunt, Cr. & M. 418; 4 Tyr, 243.
Bishop v. Hinxman, 2 Dowl. 166; In re Sheriff of Oxfordshire, 6 Dowl.136. 1 Clarke v. Lord, suprà.
m Dabbs v. Humphries, 1 Scott, 325; 1 Bing. N. C. 412; 3 Dowl. 377; Underden v. Burgess, 4 Dowl. 104.
Armitage v. Foster, 1 Har, & Wol.
• Cox v. Fenn, 7 Dowl. 51.