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William Tidd.

The practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 2) online

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Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 2) → online text (page 52 of 111)
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the court, under the above act. Allen v. Gibbon, 2 Dowl. Rep. 292. So, if an execution
creditor abandon his process against goods seized under a fieri facias, in favour of a claim-
ant, the sheriff has still a right of coming to the court, even after the goods are sold. Bayn-
ton V. Harvey, 3 Dowl. Rep. 344. And it is not necessary for the sheriff to apply to the dif-
ferent parties for an indemnity, before he applies to the court under the interpleader act.
Grossly v. Ehcrs, 1 Har. & W. 216. Nor is he bound to accept an indemnity from the exe-
cution creditor. Levy v. Champneys, 2 Dowl. Rep. 454. 8 Leg. Obs. 286, S. C. per Parke, J.
And he need not wait till an action is brought against him, before he applies to the court
for relief. Green v. Broicn, 3 Dowl. Rep. 337. Smith v. Bou-ell, 9 Leg. Obs. 348, S. C per
PaUeson, J. But the court will not give relief to the sheriff, unless an actual claim appears
to have been made. Bontly v. Hook, 2 Dowl. Rep. 339. 2 Cromp. & M. 426. 4 Tyr. Rep.
229, S. C; and see Parker v. Linnett. 2 Dowl. Rep. 562, per Patteson, J. And in order to
entitle the sheriff to relief, it must not only appear that the claim has been made, but also
that there has been something done under it, on the part of the alleged claimants, which
shows that they intend to enforce their claims against the property seized. Isaac v. Sjnlsbury^
10 Bing. 3. 3 Moore & S. 341. 2 Dowl. Rep. 211. 6 Leg. Obs. 458, S. C. It is also said,
that before the sheriff applies to the court for relief, he is hound to inquire into the nature
of the claims set up by the adverse parties. Bishop v. Hinxman, 2 Dowl. Rep. 166.

The interpleader act does not apply to claims in equity. Sturges v. Claude, 1 Dowl. Rep.
605,|>fr Pattcson, J.; and see Holmes v. Menize, 5 Nev. & M. 563." 4 Ad- & E. 127. 4 DqwI.



BY FIERI FACIAS, ETC. 1008

should scorn before, it is actually executed, (/) the sheriff cannot

legally take *or dispose of them, after notice of the act of hank- [ *1009 ]

ruptcy, and of a commission sued out, or docket struck : For,

(l) 1 Lev. 173, 4.

Rep. 300. 11 Leg. Obs. 133, S. C. And where the sheriff had levied under a fieri facias,
and, while in possession, he received notice that other writs of execution had heen issued
against the defeudants goods, and that the first execution creditor was entitled to the whole
proceeds of the levv, the court held, that the sheriff was not entitled to relief under the
above statute. Salmon v. James, 1 Dowl. Rep. 303. Anon. 4 Leg. Obs. 141, S. C per Taun-
ton, J.; and see JJai/ v. Waldocfc, 1 Dowl. Rep. r)23. 5 Leg. Obs. 427, 8, S. C. per Parke, J.
So, where the sheriff had seized goods in execution, which were under a distress for rent
due to the landlord, the court refused to grant him relief, though he had ai)plied for indem-
nity to the execution creditor, which had been refused. Ihtythorn v. Bush, 2 Dowl. R. 641.

2 Cromp. & M. 089, S. C. But where the sheriff, having seized goods under a. fieri facias,
received notice before sale, of the landlord's claim for rent in arrear, and afterwards of a
fiat of bankruptcy, the court held, that the assignees were entitled to the goods, the land-
lord not having made a distress for his rent. Gethin v. Wilks, 2 Dowl. Rep. 189. 6 Leg.
Obs. 237, S. C. per Taunton, J. If a claim be made by a person as partner of the defendant,
on proi)erty seized by the sheriff, the court will not grant relief to the latter, under the in-
terpleader act, but will compel the plaintiff to indemnify him, if he deny the partnership.
Holmes v. Mentzc, 4 Dowl. Rep. 300. 5 Nev. & M. 563. 4 Ad. & E. 127. 1 liar. & W. 606.
11 Leg. Obs. 133, S. C.

A sheriff is not entitled to relief, under the above act, where he has paid over the proceeds
of the execution to the judgment creditor. Anderson v. Calloiuaij, 1 Cromp. & M. 182. 1
Dowl. Rep. 036, S. C. Chalon v. Anderson, 3 Tyr. Rep. 237 ; and see Divcrmx v. John, 1
Dowl. Rep. 548. 5 Leg. Obs. 431, S. C per Parke, J., though he had no notice of any claim
until after he had paid over the money. Scott v. Leu-is, 1 Gale, 204. 4 Dom-1. Rep. 259. 2
Cromp. M. & R. 289, S. C. Or, though he may be willing to bring a similar amount into
court. Inland (or Ireland) v. Bushcll, 5 Dowl. Rep. 147. 2 Har. & W. 118. 12 Leg. Obs.
245, S. C. Nor is he so entitled, where he has delivered up part of the goods to the claim-
ant. Braine v. Hunt, 2 Dowl. Rep. 391. 4 Tyr. Rep. 243. 2 Cromp. & M. 418, S. C. And
where it appears that the under-sheriff is the plaintiff in the action, in which the writ of
execution has been issued and executed, the court will not interfere to relieve the sheriff
under the act, although the sheriff himself swears, in the usual way, that he does not col-
lude either with the execution creditor, or the claimant whom he seeks to bring before the
court, for the adjustment of their respective claims on the property seized. Ostler t. Bower,
4 Dowl. Rep. 605. 1 Har. & W- 653. 11 Leg. Obs. 273, 4, S. Cyoer Prt/toon, J. So, where
the sheriff, or his under-sheriff, is placed in circumstances which give him an interest on
either side, the court will not relieve him. Dudden (or Duddin) v. Long, 1 Bing. X. R. 299.
1 Scott, 281. 3 Dowl. Rep. 139, S. C. And where a sheriff applied for relief, and it appeared
that he had been guilt}' of neglect, the court refused to relieve him from any liability occa-
sioned thereby. Brachenhury v. Laurie, 3 Dowl. Rep. 180.

The application by the sheriff for relief under the sixth section of the act, must be made
to the court out of which the execution issued ; or, if the process issued out of different
courts, directed to the same sheriff, the latter must apply for relief to the respective courts
out of which the process issued. Bragg v. Hopkins, 2 Dowl. Rep. 151. 6 Leg. Obs. 13, S.
G. per Pattesnn, J. And it cannot be made, as under i\\Q first section, to a judge at cham-
bers. Shatv V. Roberts, 2 Dowl. Rep. 25. 6 Leg. Obs. 444, 5, S. C. Brackenbury v. Laurie,

3 Dowl. Rep. 180, jD«r Alderson, B. Smith v. Wheeler, 1 Gale, 15. 3 Dowl. Rep. 431. 9 Leg.
Obs. 318, 8. C. Powder v. Lock, 4 Nev. & M. 852, 3, per Ld. Bcnman, Ch. J. Beames \.
Cross, 4 Dowl. Rep. 122. Haily v. Disney, 1 Hodges, 189. But after the rule has been
granted by the court, cause may, it seems, be shown at chambers. Pou-eler v. Lock, 4 Nev.
& M. 852, 3, per Ld. Dcnvian, Cli. J. Beames v. Cross, 4 Dowl. Rep. 122. Hailey (or Haines)
V. Disney, 1 Hodges, 189. 2 Scott, 183, S. C. per Gaselee, J.; and see Matthews v. Sims (or
Sill), 5 Dowl. Rep. 234. 13 Leg. Obs. 189, S. C; but see Shaw v. Roberts, 2 Dowl. Rep. 25.
6 Leg. Obs. 444, 5, S. C. Brackenhury v. Laurie, 3 Dowl. Rep. 180, per Alderson, B. Smith
V. Wheeler, 1 Gale, 15. 3 Dowl. Rep. 431. 9 Leg. Obs, 318, S. C. contra. It is also a rule,
that if a sheriff wish to obtain relief, he must come to the court i)romptly, or in a reason-
able time after he has notice of the claim. Devercuz v. John, 1 Dowl. Rep. 548. Cooke v.
Allen, 1 Cromp. k M. 542. 3 Tyr. Rep. 586. 2 Dowl. Rep. 11. 6 Leg. Obs. 221, S. 0.
JJixon V. Fn.iell, 2 Dowl. Rep. 621; and see Braine v. Hunt, 4 Tyr. Hep. 243. Alemore v.
Adeane, 3 Dowl. Rep. 498. 10 Leg. Obs. 12, 13, S. C. And if a sheriff receive notice on the
2d January, of a claim of goods seized by him under n fieri facias, he will not be entitled to
relief under the interpleader act, unless be come to the court in Hilary term. Ridgwa^ v.



1009



OF EXECUTION



per Holt Ch. J., " if a writ of execution be delivered to the sheriff against
A. who becomes bankrupt before it is executed, the execution is super-

Fisher 3 Do\vl. Rep. 567. 1 Har. & W. 191. 10 Leg. Obs. 136, S. G. per Williams, J. But
a hite'apnlication will, under circumstances, be allowed. Dixonx. Emell, 2 Dowl. 621; and ,
see Barlar v. Phipson, 3 Dowl. Rep. 590. 1 Har. & W. 191. 10 Leg. Obs. 136, T, S. C. And '
it has been holden that a sheriff is early enough in his application, if he come to the court
within elci-cn days after notice of an intended claim. Skippe/- v. Lane, 2 Dowl. Rep. 784. 4
Moore & S. 283, S. C; and see Dixon v. Ensell, 2 Dowl. Rep. 621. So, if a sheriff, who
has seized goods under o, fieri facias, receive notice of an intended ^zwi of bankruptcy against
the defendant, he will be entitled to relief under the interpleader act, if he come to the court
on the second day of the term, after the assignees are appointed. Barker v. Fhipson, 3 Dowl.
Rep. 590. 1 Har. & W. 191. 10 Leg. Obs. 136, 7, S. 0. But the court refused to give a
sheriff relief under the interpleader act, where ii. fieri facias had been delivered to him two
months before notice of a fiat having issued against the defendant, and no reason was as-
signed for the delay in the execution. Lashmar v. Claringbold, 2 Har. & W. 87.

The aDhhu'it in support of the application, should state the seizure of the goods by the
sheriff under the execution, and that he had received notice of the claim from the party or
parties by whom it was made. Northcote v. Beauchamp, 1 Moore & S. 158 ; and where there
is delay, or any circumstance to be accounted for, the sheriff must make a special affidavit,
stating" the facts ; and no supplemental affidavit will be allowed, when cause is shown against
the rule. C'oo/^e v. ^Z/c«, 1 Cromp. & M. 542. 3 Tyr. Rep. 586. 2 DowL Rep. 11 S. C. It
does not seem to be necessary for the sheriff in his affidavit to deny collusion, in order to ob-
tain relief under the above act. Donniger v. Hinxman (or Ilinksman), 2 Dowl. Rep. 424. 7
Leg. Obs. 252, S. Q. per Littledale, J. Bobbins v. Gree?i, 2 Dowl. Rep. 509. 8 Leg. Obs. 397,
S. C.per Patteson, J. Boond v. Woodall, 1 Tyr. & G. 11. 2 Cromp. M. & R. 601. Bond v.
Woodhall, 4 Dowl. Rep. 351. 11 Leg. Obs. 374, S. C. ; but see Anderson v. Calloway, 1 Cromp.
& M. 182. 1 Dowl. Rep. 636, S. C. Cooke v. Allen, 1 Cromp. & M. 542. 3 Tyr. Rep. 586.
2 Dowl. Rep. 11. 6 Leg. Obs. 221, S. C. semb. contra. Nor to state that an application has
been made to the execution creditor, or to the claimant, for an indemnity. Wills v. Popjoy,
10 Leg. Obs. \2,per Williams, J.; but see Levy v. Champneys, 2 Dowl. Rep. 454. 8 Leg. Obs.
286, S. G. per Parke, J. Ante, 576, 7. Where the sheriff" obtains a rule for relief, the claim-
ants may appear without taking office copies of the affidavits on which the rule was obtained.
Mason v. Rcdshaw, 2 Dowl. Rep. 595. And affidavits, on showing cause, are in time, if sworn
at any time before cause is shown. Braine v. Hunt, 2 Dowl. Rep. 391. A claimant called
upon by a rule under the interpleader act, to come in and state his claim, must give the par-
ticulars upon his affidavit, to enable the court to decide, even whether he is to be made a
party to an issue. Powell (or Poweler) v. Lock, 1 Har. & W. 281. 3 Ad. & E. 315. 4 Nev.
& M. 852, S. C. And when the sheriff applies to the court for relief under the above act,
no one has a right to be heard against the rule, unless he is. called upon thereby, though he
IS in fact a claimant, and if he be called on in one character, he cannot appear in another.
Clarke v. Lord, 2 Dowl. Rep. 55, Excheq. But where a rule nisi had been obtained, under
the interpleader act, and the defendant afterwards became a bankrupt, his assignees were
admitted as parties to the rule. Kirk v. Clai-k, 4 Dowl. Rep. 363. 11 Leg. Obs. 436, S. C.

In the exercise of the powers and authorities given by the act, if the parties appear, the
court will either discharge the rule, in which case the sheriff is entitled to a reasonable time
to return the writ, before an attachment can issue; Rex v. Sheriff of Uertfordshire, 5 Dowl.
Rep. 144 ; 2 Har. & W. 122 ; 12 Leg. Obs. 244, 5, S. C; or they will order the question of
property to be tried in an action, or on one or more feigned issue or issues, and direct which
of the parties shall be plaintiff or defendant on such trial ; Badeock v. Beauchamp, 3 Leg.
Obs. QG; 8 Bing. 86, S. C; cited. Parker v. Booth, 1 Moore & S. 156. 8 Bing. 85, S. C.
Northcote v. Beauchamp, 1 Moore & S. 158. 8 Bing. 86, S. C. Barker v. Dynes, 1 Dowl. Rep.
169. 3 Leg. Obs. 310, S. C. Slowman v. Back, 3 Barn. & Ad. 103. And for the form of
the rule, see Parker v. Booth, 1 Moore & S. 156. 8 Bing. 85, S. C. Append, to Tidd Sup.
1833, p. 322, &c. Or with the consent of the plaintiff' and party making the claim, their
counsel or attorneys, the court will dispose of the merits of their claims, and determine the
same in a summary manner. Ford v. Baynton, 1 Dowl. Rep. 357. L'urlewis y. Pocock, 5
Dowl. Rep. 381. On an application by the sheriff for relief, the court, if there be any doubt,
will not try the merits of the respective claims upon affidavit; Bramidge v. Adshead, 2 Dowl.
Rep. 59 ; but direct the same to be tried in an action against the sheriff, or by a feigned is-
sue; Allen V. Gibbon, 2 Dowl. Rep. 292; in which the claimant should, it seems, be the
plaintiff, and the execution creditor the defendant. Bramidge v. Adshead, 2 Dowl. Rep. 59.
Bentley v. IJook, 4 Tyr. Rep. 229. And the court will, in such case, order the proceedings
against the sheriff to be stayed, until the trial of the action or feigned issue : and in the
mean time, give such directions respecting the sale of the goods, and application of the pro-
ceeds or value thereof, as shall appear to be just, according to the circumstances of the case.
And where, in an issue under the interpleader act, the declaration states that " divers goods



BY FIERI FACIAS, ETC. 1009

seded ; conpeqiicntly, the property of the goods is not a1)Sokitely bound hy
the delivery of the writ to the bheriff:"(a) And therefore, ^vhere goods are

(a) 1 La. Raym. 232 ; and see 2 Eq. Cag. Abr. 381. 2 Ken. 542. Ante, 1000.

and cliattils" were seized under a, fieri facias, and avers that "//i^ sai<l goods and chattels''
were thu pmiierty of the i>laiiitiH', unless the |ih\intiir jirove that the whole of the goods be-
long to him, the defendant will be entitled to a verdict; but it seeius that if part of the
goods belong to the plaintifl", the judge will ask the jury to find specially. Morewood v.
Wilktu, 6 Car. & P. 144.

When an adver.^e claim is set up to goods seized by the sheriff, and the latter applies to
the court for relief, and the adverse party does not appear to support his claim, the court
will bar his claim as against the sheriff. Bawdier v. Smit/i, 1 Dowl. Hep. 417. 4 Leg. Obs.
187, S. C. I'lrkius (or Parkins) v. Benton (or Burton), 3 Tyr. Rep. 51. 2 Dowl. Rep. 108.
6 Leg. Obs. 478, S. C. Tou-good v. Morgan, 3 Tyr. Rep. 52, {a) ; and see Field v. Cope, 2
Tyr. Rep. 458. 2 Cromp. & J. 480. 1 Dowl. Rep. 567, S. C. So, where the execution cre-
ditor does not appear to support his execution, his claim may be barred, as against a third
person claiming the goods. Ford v. Dillon (or Uilhj), 2 Nev. & M. GG2. 5 Barn. & Ad. 885,
S. C. But where an execution creditor does not appear, on being served with a sheriff s rule,
the court cannot bar his claim, as between him and another execution creditor. Donnigtr
V. Hinxman, 2 Dowl. Rep. 424. 7 Leg. Obs. 252, S. Q.jxr Liltledale, J. And if an execu-
tion creditor abandon his process against certain goods seized under & frri fario.i. in favour
of the claimant, the sheriff has still a right to show, in an action against him, that the goods
were the property of the defendant. Baynton v. JIarveg, 3 Dowl. Rep. 344.

The costs of proceedings, under the interpleader act, are declared thereby to be in the dis-
cretion of the court; and in what manner this discretion has been exercised, will appear by
the following decisions.

As the sheriff, previously to the above act, was not allowed his costs of applying to the court
for enlarging the time to make his return ; Rex v. Cooke, 1 M'Clel. & Y. 198, 9 ; and see Tidd
Prac. 9 Ed. 1017, 18 ; Ante, 574, 5; so neither is he entitled by that act to his costs of the
application for relief. Badcock v. Beaiichamp, 3 Leg. Obs. 66. 8 Bing. 86, S. C. cited. Par-
ker V. Booth, 1 Moore & S. 156. 8 Bing. 85, S. C. Northcote (or Northcott) v. Beauchamp,
1 Moore & S. 158. 8 Bing. 86, S. C. Barker v. Dynes, 1 Dowl. Rep. 169. 3 Leg. Obs. 310,
S. C. 5oKf//(T V. *S'7H(V/i, 1 Dowl. Rep. 417. 4 Leg. Obs. 187, S. C. Field y. Cope, 2 Tvr.
Rep. 458. 2 Cromp. & J. 480. 1 Dowl. Rep. 567, S. C. Oram v. Sheldon, 3 Dowl. Rep. 640.
1 Hodges, 92, S. C. Armitage v. Foster, 1 Har. & W. 208. West v. Rotherham. 2 Bing. N.
R. 527. 2 Scott, 802. 1 Hodges, 461, S. C. Beswick v. Thomas, 5 Dowl. Rep.' 458. And
the court will not, under the interpleader act, allow the sheriff his costs incurred by keep-
ing possession, in consequence of a party refusing to consent to a judge at chambers making
an order in the case ; no authority for that purpose being given by the act. Clarke v. Chet-
wode, 4 Dowl. Rep. 635. 11 Leg. Obs. 404, 5, S. C per Patteson, J. But where a claimant
abandons his claim after an application under the interpleader net, and after an issue di-
rected by the court, the sheriff" is entitled to his costs from the time of directing the issue,
and of the application for those costs. Scales v. Sargesou, 4 Dowl. Rep. 231. 11 Leg. Obs.
118, 19, S. C. ; and see Same v. Same, 3 Dowl. Rep. 707. 10 Leg. Obs. 285, S. C. So, where
an execution creditor appeared under the interpleader act, and consented, with the claim-
ant, that the sheriff should sell the goods, and that their j)roduce should atiide the event of
an issue to be tried, but subsequently abandoned his claim, the court compelled him to pay
the sheriff the costs of selling the goods. Dabbs v. Humphrey, (or Humphries,) 1 Hodges, 4.
1 Scott, 325. 1 Bing. N. R. 412. 3 Dowl. Rep. 377. Leg. Obs. 302, S. C. ; and see Un-
derden v. Burgess, 4 Dowl. Rep. 104. 10 Leg. Obs. 495, S. C. Armitage v. Foster, 1 Har. &
W. 208. Where there had been great delay, however, on the part of the sheriff, in apply-
ing to the court, in consequence of negotiations between the parties, and the execution cre-
ditor afterwards abandoned his claim, the court ordered each party to pay bis own costs.
Dixon T. Ensell, 2 Dowl. Rep. 621.

An execution creditor, served with a sheriff's rule under the interpleader act, is not bound
to appear, when there are no goods liable to his execution : and therefore, where such cre-
ditor appears u])on the rule, but does not insist upon any goods being liable to his execu-
tion, he is not entitled to the costs of his appearance ; Glasier v. Cooke, 5 Nev. k M. 680. So,
where the rule called upon assignees of a bankrupt, who had made a claim under a fat in
b.ankrupt(y which was afterwards superseded, the court refused to make the sheriff pay the
costs of the assignees' appearance. Clarke y.Lord, 2 Dowl. Rep. 55. But where the landlord
of prcmi.ses on which the goods were taken, has a claim for rent, and gives notice in proper
time, the sheriff ought to pay him ; otherwise the court will make the sheriff pay the land-
lord's costs of appearing; Id. ib. So, where the court had ordered the sheriff to pay the
rent, upon the landlord's giving security, and also to pay his costs, it was holdcn that the



■j^QOg OF EXECUTION

seized under ix, fieri facias, the same day that the defendant commits an act
of bankruptcy, evidence should be given to prove at what time of the day

sheriff was liable to pay the expense of the security ; Same v. Same, id. 227. 7 Leg. Obs.
525, S. C.

Wliere an issue is directed to be tried between an execution creditor and a claimant
brought before the court by the sheriff under the interpleader act, but the latter refuses to
try, and abandons his claim, he will be liable to pay the execution creditor's costs, down to
the time of the claim being abandoned, and of applying to take the money paid in by the
sheriff out of court: Wills v. Hopkins, 3 Dowl. Rep. 346. 9 Leg. Obs. 429, S. C. So where,
in conseiiuence of a claim made to goods seized by a sheriff in execution, the court ordered
the claimant to proceed to trial, upon paying a sum of money into court, which he neglected
to do, and a rule was then obtained to compel him to pay the costs occasioned by his false
claim, the court held that he was liable to pay those costs, as well as the costs of that rule,
though no previous application had been made to him ; Scales v. Sargeson, 3 Dowl. Rep. 707.
10 Leg. Obs. 285, S. C. ; and see Same v. Same, 4 Dowl. Rep. 231. 11 Reg. Obs. 118, 19, S.
C. The affidavit in support of an application to the court for costs, when the claimant re-
linquishes his claim, must be entitled in the names of the parties in the original cause ;
Elliot V. Sparrow, 1 Har. & W. 370. And the rule for paying a sum of money in the hands
of the execution creditor, which is the produce of an execution, and which has been paid
into court by the sheriff under the interpleader act, the claimant having abandoned his
claim, is not absolute, but only a rule nisi in the first instance ; Stanley (or Staley) v. Perry,
4 Dowl. Rep. 599. 1 Har. & W. 669. 11 Leg. Obs. 230, 325, S. G.,per Patteson, J.; and
see Slmttleworth v. Clark, 1 Har. & W. 662. 4 Dowl. Rep. 561. 11 Leg. Obs. 373, 4, S. C,
per Coleridge, J.

Where an issue is tried by the direction of the court, the unsuccessful party is liable for
the costs : But the other party applies to the court by motion, without having made applica-
tion to the opposite party, to do what the rule requires of him, is not entitled to the costs of
the rule, if the latter, on showing cause, confine himself to the question of costs ; Bowen v.
Bramidgc, 2 Dowl. Rep. 213. Armitage v. Foster, 1 Har. & W. 208; and see 3Iaitheu-sr. Sims,
(or Sill,) 5 Dowl. Rep. 234. 13 Leg. Obs. 189, S. C. And where a sheriff is relieved under
the interpleader act, and an issue is directed to try the rights of adverse claimants, the court
may adjudicate after the trial, on the costs of appearing to the sheriff's rule, and of the issue ;
Seaward Y. Williams, 1 Dowl. Rep. 528. 5 Leg. Obs. 427, S. G., per Parke, J.; and Bee Levy
V. Champneys, 4 Ad. & E. 365.

"When an adverse claim is set up to goods seized by the sheriff, and the latter applies to
the court for relief, and the adverse party does not appear to support his claim, the court
will make him pay the execution creditor his costs of appearing on the sheriff's rule ; Bowdler
V. Smith, 1 Dowl. Rep. 417. 4 Leg. Obs. 187, S. C. Perkins (or Parkins) \. Benton (or Bur-
ton,) 3 Tyr. Rep. 51. 2 Dowl. Rep. 108. 6 Leg. Obs. 478, S. C. And where a fieri facias
having issued, goods were seized under it, and an adverse claim being set up, the sheriff
applied to the court for relief, and the execution creditor did not appear to support his fieri
facias, the court granted the costs of the adverse claimant's appearing to support his claim,
to be paid by the execution creditor, but not those of the sheriff; Bryant v. I key, 1 Dowl.
Rep. 428. 4 Leg. Obs. 284, S. C. per Patteson, J. Tomlinson v. Done, 1 Har. & W. 123, per
Patteson, J. Ford v. Dilly (or Dillon,) 5 Barn. & Ad. 885. 2 Nev. & M. 662, S. 0. Besicick
v. Thomas, 5 DowL Rep. 458 ; and see Field v. Cope, 2 Tyr. Rep. 458. 2 Cromp. & J. 480.
1 Dowl. Rep. 567, S. C. Where a claim to goods seized by a sheriff was made by the de-
fendant, on behalf of another, which did not appear to be well founde'd, and neither party
appeared to support the claim, the court of Exchequer made the defendant pay the costs of
the sheriff's application under the interpleader act; Lewis v. Eicke, 2 Dowl. Rep. 337. 2
Cromp. k M. 321. 4 Tyr. Rep. 157, S. 0.; and see PJiUbyx. Ikey, 2 Dowl. Rep. 222. 7 Leg.
Obs. 508, S. C. Toicgood \. Morgan, 3 Tyr. Rep. 52, (a.) But in a subsequent case; Oram
v. Sheldon, 3 Dowl. Rep. 640. 1 Hodges, 92, S. C. Thompson v. Sheddon, 1 Scott, 697, S. C;
and see West v. Rotlierham, 2 Bing. N. R. 527. 2 Scott, 802. 1 Hodges, 461, S. C. Bes-
wick V. Thomas, 5 Dowl. Rep. 458. 13 Leg. Obs. 302, S. C. per Ld. Abinger, Ch. B., the court
of Common Pleas would not allow the sheriff applying to be relieved under the act his costs,
where the claimant did not appear ; nor will the execution creditor be allowed his costs,
except in the event of extremely improper conduct in the parties. Id. ib. And where the
sheriff applies to the court for relief under the interpleader act, and no blame appears to attach
either to the execution creditor, the claimant, or the sheriff, each party shallpay his own costs ;
Moreland v. Chitty, 1 Dowl. Rep. 520. 5 Leg. Obs. 428, S. C. In a late case, Eceleigh v.
Salsbury, 3 Bing. N. R. 298. 5 Dowl. Rep. 369, S C, (which is the first case of the kind in



Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 2) → online text (page 52 of 111)