No. II.

1 & 2 W. 4,

c. 58.

If such third

III. That if such third party shall not appear upon such rule or order to maintain or relinquish his claim, being duly served therewith (1), or shall neglect or refuse to comply with any rule or order to be made after appearance, it shall be lawful for the court or judge to declare such third party, and all persons claiming by, from, or under him, to be for ever party shall not barred from prosecuting his claim against the original defendant, his appear, &c. the executors or administrators; saving nevertheless the right or claim of court may bar such third party against the plaintiff; and thereupon to make such order his claim against between such defendant and the plaintiff, as to costs and other matters, the original defendant. as may appear just and reasonable

Proviso as to

orders made by a single judge.

If a judge thinks the

IV. Provided always, That no order shall be made in pursuance of this act by a single judge of the court of pleas of the said county palatine of Durham who shall not also be a judge of one of the said courts at Westminster, and that every order to be made in pursuance of this act by a single judge not sitting in open court shall be liable to be rescinded or altered by the court in like manner as other orders made by a single judge.

V. Provided also, That if upon application to a judge, in the first instance or in any later stage of the proceedings, he shall think the matmatter more fit ter more fit for the decision of the court, it shall be lawful for him to for the decision refer the matter to the court; and thereupon the court shall and may of the court, he hear and dispose of the same in the same manner as if the proceeding may refer it. had originally commenced by rule of court, instead of the order of a judge.

For relief of sheriffs and

VI. And whereas difficulties sometimes arise in the execution of process against goods and chattels, issued by or under the authority of the other officers in said courts, by reason of claims made to such goods and chattels by execution of assignees of bankrupts and other persons not being the parties against grocess against whom such process has issued, whereby sheriffs (2) and other officers goods and chattels.

Where an issue is tried by the direction of the court, the unsuccessful party is liable for the costs. Bowen v. Bramridge, 2 Dowl. 213. And where an issue was directed to be tried between an execution creditor and a claimant, brought before the court by the sheriff, but the claimant refused to try it, and abandoned his claim, he was held liable to pay the execution creditor's costs down to the time of the abandonment of the claim, and his costs of applying to take out the money paid into court by the sheriff. Wills v. Hopkins, 3 Dowl. 346.

Where, in consequence of a claim made to goods seized by the 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; 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. 707.

(1) If the parties to the rule do not appear, there must be an affidavit of service upon them before the court will entertain the motion. Phillips v. Spry; Lambert v. Townsend; Jervis's Rules, p. 40, App. 2d ed. Claimants neglecting to appear are precluded, by the terms of the rule, from enforcing their claim. Ford v. Dillon, 2 Nev. & M. 662. But an execution creditor is not “a third party" within the act, so as that his claim will be barred by his not appearing under the rule. Donniger v. Hinxman, 2 Dowl 424.

(2) At common law the courts would in general protect their own officers when acting bond fide in executing the process of the court (as a sheriff acting in obedience to a writ of fieri facias) from the risk of liability to two different claimants, as where he had seized goods under a writ of fi. fa., provided he applied to the court as soon as he found himself in peril; as if upon such seizure he had notice that the party whose goods he had taken had committed an act of bankruptcy, and that assignees claimed the property, as there was a reasonable doubt whether the goods were not liable to an extent of the crown, the court would enlarge the time for returning the writ, when ruled by the plaintiff to do so, until he or the assignees had indemnified him, or had inter se settled their mutual claims, (see the decisions cited in Chitty's G. P. L., vol. 2, p. 341,) and would compel the adverse claimant to try the right, whilst the proceeding against the sheriff or officer was suspended, or upon the terms of his bringing the proceeds into court to abide the result. At common law this was the only mode of relief to the sheriff who had seized goods in settlement, for he could not file a bill of interpleader, because, as observed by Lord Eldon, " a person cannot file a bill of interpleader who was obliged to put his case upon this, that as to some of the parties he might be a wrongdoer, as by the seizure and temporary detention of the goods." Slingsby v. Boulton, 1 Ves. & B. 334. For the same reason the court of King's Bench, on the motion of an auctioneer, who had, before notice of any third person's claim, sold under an execution by the direction of the

are exposed to the hazard and expence of actions; and it is reasonable to afford relief and protection in such cases to such sheriffs and other officers; be it therefore further enacted, That when any such claim shall be made to any goods or chattels taken or intended to be taken in execution under any such process, or to the proceeds or value thereof, it shall and may be lawful to and for the court from which such process issued, upon application of such sheriff or other officer made before or after the return of such process, and as well before as after any action brought against such sheriff or other officer, to call before them, by rule of court, as well the party issuing such process as the party making such claim, and thereupon to exercise, for the adjustment of such claims and the relief and protection of the sheriff or other officer, all or any of the powers and authorities herein-before contained, and make such rules and decisions as shall appear to be just, according to the circumstances of the case; and the costs of all such proceedings shall be in the discretion of the court (1).

sheriff, gave him leave to bring the proceeds into court, with a stay of actions against him; MS. Chitty's G. P. L. 218, 341, n. (d).

(1) With respect to the sheriff, where process is issued out of different courts, and directed to the same sheriff, he must apply for relief to the respective courts out of which the process issues. Bragg v. Hopkins, 2 Dowl. 15. But cause cannot be shown against the rule at chambers; for, although the first section of the act gives such power to a single judge, yet, by the sixth section, it is granted to the court only. Shaw v. Roberts, Ib. 25; and see Cook v. Allen, Ib. 11.

The court will relieve the sheriff, in the case of a conflicting claim on property seized by him, though that claim be only of a lien on the property. Ford v. Bayntum, 1 Dowl. 357. But where a sheriff had levied under a fi. fa., and while in possession he received notice that other writs of execution had been issued against the defendant's goods, and that the first execution creditor was not entitled to the whole proceeds of the levy, the court held that the sheriff was not entitled to relief under this statute. Salmon v. James, 1 Dowl. 369; and see Day v. Waldock, Ib. 523. Nor will he be relieved, if he be placed in circumstances which give him an interest on either side. Duddin v. Long, 3 Dowl. 139; 1 Bing. N. C. 299. And where the sheriff applied, but it appeared that an attachment had been already obtained against him for not returning the writ, the court would only make the rule absolute, on the terms of his paying for moving for the attachment. Alemore v. Adeane, 3 Dowl. 498.

son,

If a sheriff receives notice on the 23d of January of a claim to goods seized by him, he will not be entitled to relief, unless he comes to the court in Hilary Term. Ridgway v. Fisher, 3 Dowl. 567. But otherwise, where he received notice of an intended fiat of bankruptcy against the defendant, and came to the court on the second day of the term after the assignees were appointed. Barker v. Phip3 Dowl. 590. And if he wish to obtain relief under it, he must go to the court promptly, and no supplemental affidavit explaining his delay will be allowed, when cause shown against the rule. Cook v. Allen, 2 Dowl. 11. In Devereux v. John and Another, the court said, "Although no time is mentioned in the act, yet the sheriff must come within a reasonable time. But here the sheriff suffers an action to be brought against him, and keeps possession of the goods for several months." Rule discharged, the sheriff paying the costs of all parties. 1 Dowl. 548. Where the sheriff seized under an execution on the 14th of December, a rule which had been obtained to set aside judgment and execution, was discharged on the 20th of January. On the 31st the sheriff obtained a rule under the interpleader act. It was held he ought to have applied earlier, and the rule was discharged with costs. Semble, He ought to have applied at the commencement of Hilary Term. Cook v. Allen, 2 Dowl. 11; 3 Tyr. 386; 1 C. & M. 542, S. C. So where a sheriff received notice of a claim on the 23d of January, he was held too late in applying for relief in Easter Term. Ridgway v. Fisher, 3 Dowl. 567. But a sheriff is sufficiently early if he comes to the court for relief within eleven days after notice of an expected claim. Skipper v. Lane, 2 Dowl. 784; 4 Mo. & S. 283, S. C. The court, however, will be guided by the special circumstances of the case, in determining whether the sheriff has applied sufficiently early. See Dixon v. Ensell, 2 Dowl. 621.

It has been held that the sheriff ought to deny collusion with any of the parties. Dixon v. Ensell, 2 Dowl. 621; and see Cook v. Allen, ante; but in Donnizel v. Hinxman, and Dobbin v. Green, 2 Dowl. 434, 509, it is said to be otherwise; and in a recent case, Boonot v. Woodall, 1Tyr. & Granger, 11, the court of Exchequer, after referring to the act, decided that the sheriff need not deny collusion.

A sheriff is not entitled to relief, if he pays over the money to the execution creditor after notice of a claim by a third party. Anderson v. Calloway, 1 Doul. 636; 1 C. & M. 182, S. C.; Tidd's Sup. 191; nor, if he delivers up any part of the goods to the claimant. Braine v. Hunt, 2 Dowl. 391; 4 Tyr. 243; 2 C. & M. 418, S. C.

Where the sheriff seized goods which had been distrained by the landlord, the court refused him relief, though he had applied for indemnity to the execution creditor, and been refused. Haythorn

No. II.

1 & 2 W. 4,

c. 58.

&c. made in

pursuance of

VII. That all rules, orders, matters, and decisions to be made and done in pursuance of this act, except only the affidavits to be filed, may, together with the declaration in the cause (if any), be entered of record, with a note in the margin expressing the true date of such entry, to the Rules, orders, end that the same may be evidence in future times, if required, and to secure and enforce the payment of costs directed by any such rule or order, and every such rule or order so entered shall have the force and efthis act may be fect of a judgment, except only as to becoming a charge on any lands, teneentered of ments, or hereditaments; and in case any costs shall not be paid within record, and fifteen days after notice of the taxation and amount thereof given to the made evidence. party ordered to pay the same, his agent or attorney, execution may issue for the same by fieri facias or capias ad satisfaciendum, adapted to the case, together with the costs of such entry, and of the execution if by fieri facias; and such writ and writs may bear teste on the day of issuing the same, whether in term or vacation; and the sheriff or other officer

Costs.

Writs.

Sheriffs fees.

v. Bush, 2 Dowl. 641. But where the sheriff seized under a fi. fa, and a third person claimed, it was held, that the sheriff was not bound to take an indemnity from the execution creditor, but might apply for relief under this act. Levy v. Champneys, Ib. 454. It has been seen that the sheriff will not be relieved where he has paid over the proceeds of the execution; so also any neglect on his part, with regard to the goods in question, will prevent his being relieved. Brackenbury v. Laurie,

3 Dowl. 180.

Again, it seems that to entitle the sheriff to relief, an actual claim must have been made to the goods seized under the execution. And where a notice was given by some person whose name did not appear, "that a fiat in bankruptcy had been issued against the defendant, and that assignees had been chosen," it was held not a sufficient claim; Bentley v. Hook, 2 C. & M. 426; 4 Tyr. 229, S. C. and in order to entitle the sheriff to relief, it must not only appear that a claim has been made, but also that there has been something done on the part of the alleged claimants, which shows that they intend to enforce their claims against the property seized; Isaac v. Spilsbury, 10 Bing. 3; 2 Dowl. 211; 3 M. & S. 341, S. C.: but, on the other hand, the sheriff need not wait for proceedings to be taken against him before he applies to the court for relief; Green v. Brown, 3 Dowl. 337.

Where the sheriff is before the court for relief, no one has a right to be heard against the rule, unless he is called upon by the rule, though he is in fact a claimant; and if he is called on in one character, he cannot appear in another; Clarke v. Lord, 2 Dowl. 55.

As to the Costs of the Sheriff-Where 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 bar his claim as to the sheriff, and make him pay the judgment creditor his costs of appearing on the sheriff's rule; Bowdler v. Smith, 1 Dowl. 417; and see Perkins v. Burton, 3 Tyr. 51; 2 Dowl. 108. Where a fi. fa. was issued, goods seized under it, an adverse claim set up, and the sheriff applied for relief under this act, and the execution creditor did not appear to support his fi. fa., 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'; but the execution creditor having afterwards appeared and opened the rule, the court granted the sheriff the costs of his second appearance; Bryant v. Ikey, 1 Dowl. 428. As the sheriff, before the statute, was not entitled to the costs of applying to the court for enlarging the time to make his return, so he is not entitled under this statute to the costs of his application; Ib. Per Patteson, J.

The sheriff ought to exercise considerable caution in coming to the court for relief, for he is bound to inquire into the nature of the claims set up; and therefore, if he bring parties before the court in consequence of a claim which is clearly bad in point of law, the court will compel him to pay costs; Bishop v. Hinxman, 2 Dowl. 166. The sheriff having taken goods in execution while there was rent due to the landlord, which he claimed of the sheriff, the later brought the landlord, with other claimants, into court, under the above act. The court ordered the sheriff to pay the rent upon the landlord's giving security, and also to pay his costs. It was held, that the sheriff was liable to pay the expence of the security; Clarke v. Lord, 2 Dowl. 227.

The court will allow the sheriff who applies for relief, such expences as he may incur as agent of the parties after his application; Dabbs v. Humphries, 3 Dowl. 377; 1 Bing. N. C. 412. But where the claimant does not appear, the sheriff will not have his costs, nor will the plaintiff be allowed his costs, except in the event of extremely improper conduct in the parties; Orum v. Sheldon, 3 Dowl. 640; but see Philby v. Ikey, 2 Dowl. 222. In other cases the costs of the proceedings are declared by this act to be in the discretion of the court; Tidd's Supp. 192.

The sheriff's right to poundage depends upon the event of the application or suit, and that be determined in favour of the execution creditor, the sheriff will, of course, be entitled to his poundage, but otherwise not; Parker v. Booth, 8 Bing. 85; Northcote v. Beauchamp, Ib, 86; Barker v. Dynes, 1 Dowl. 169; Bowdler v. Smith, Ib. 417.

executing any such writ shall be entitled to the same fees, and no more, as upon any similar writ grounded upon a judgment of the court.

c. 58.

court to exercise such

VIII. And whereas by a certain act made and passed in the last session of parliament, intituled An Act to improve the Proceedings in Prohibition and on Writs of Mandamus, it was among other things enacted, that it Upon any apshould be lawful for the court to which application may be made for any plication under such writ of mandamus as is therein in that behalf mentioned to make 1 W. 4, c. 21, rules and orders calling not only upon the person to whom such writ and this act, the may be required to issue, but also all and every other person having or claiming any right or interest in or to the matter of such writ, to show cause against the issuing of such writ and payment of the costs of the make such rules powers and application, and upon the appearance of such other person in compliance as are given by with such rules, or in default of appearance after service thereof, to exer- or mentioned cise all such powers and authorities, and make all such rules and orders in this act. applicable to the case, as were or might be given or mentioned by or in any act passed or to be passed during that present session of parliament for giving relief against adverse claims made upon persons having no interect in the subject of such claims: And whereas no such act was passed during the then present session of parliament; be it therefore enacted, That upon any such application as is in the said act and hereinbefore mentioned, it shall be lawful for the court to exercise all such powers and authorities, and make all such rules and orders applicable to the case, as are given or mentioned by or in this present act.

[No. III.] 3 & 4 W. IV. c. 99.-An Act for facilitating the Appointment of Sheriffs, and the more effectual Audit and passing of their Accounts; and for the more speedy Return and Recovery of Fines, Issues, forfeited Recognizances, Penalties, and Deodands; and to abolish certain Offices in the Court of Exchequer. [29th August 1833.] WHEREAS the appointment of sheriffs, and the audit and passing of their accounts in the court of exchequer, are attended with unnecessary expence, delay, and trouble: For remedy whereof be it enacted, &c. That so much of an act passed in the third year of the reign of his Majesty king George the first, intituled An Act for the better regulating of 3 G. 1, c. 15, Repeal of part the Office of Sheriffs, and for ascertaining their Fees, and the Fees for and of 3 G. 1, suing out their Patents and passing their Accounts, as entitles and autho- C. 16. rizes certain officers therein and in the schedule thereto mentioned to demand, take, and receive the fees named in the said schedule, and also the said schedule, and also an act passed in the said third year of the reign of his Majesty king George the first, intituled An Act for better enabling Sheriffs to sue out their Patents and pass their Accounts, be and the same are hereby repealed.

II. That from and after the passing of this act it shall not be neces- Sheriffs not to sary for any sheriff or sheriffs of any county, city, or town in England sue out patent or Wales to sue out any patent or writ of assistance, or to make or pay or pass acproffers, nor shall any bailiff or bailiffs of liberties in England or Wales counts in exbe required to make or pay any proffers, nor shall he or they have any chequer. day of prefixion, or be apposed, or take any oath or oaths before the cur sitor baron to account, or account, or be cast out of court, as now or heretofore in use in his Majesty's court of exchequer, any law, statute, or usage to the contrary notwithstanding.

III. That whenever any person shall be duly pricked or nominated by Appointment his Majesty for and to be sheriff of any county in England or Wales, ex- of sheriff. cept the county palatine of Lancaster, the same shall be forthwith notified in the London Gazette, and a warrant in the form set forth in the schedule to this act shall be forthwith made out and signed by the clerk of the privy council, and transmitted by him to the person so nominated and appointed sheriff as aforesaid; and the appointment of sheriff thereby

No. III.

3 & 4 W. 4, c. 99.

Clerk of peace to enrol dupli

cate.

Sheriff to appoint an under sheriff, and transmit a duplicate thereof to the clerk of the peace for the county.

Oaths of sheriff

riff.

made shall be as good, valid, and effectual in the law to all intents and purposes whatsoever as if the same had been made by patent under the great seal of Great Britain, or by any ways and means heretofore in use; and the sheriff and sheriffs so appointed as aforesaid shall thereupon, and upon taking the oath of office hereafter mentioned, have and exercise all powers, privileges, and authorities whatsoever usually exercised and enjoyed by sheriffs of counties in England and Wales, without any patent writ of assistance or other writ whatsoever, or entering into any recognizance by himself or sureties, and without payment of or being liable to pay any fees whatsoever for the same.

IV. Provided always, That a duplicate of the said warrant shall, within ten days next after the date of the same warrant, be transmitted by the said clerk of the privy council to the clerk of the peace of the county for which such person shall be nominated and appointed sheriff, to be by the said clerk of the peace enrolled, and which he is hereby required to enrol and keep without fee or reward.

V. That from and after the passing of this act every person so appointed sheriff as aforesaid shall, within one calendar month next after the notification of his appointment in the London Gazette, by writing under his hand, nominate and appoint some fit and proper person to be his under sheriff, and shall transmit a duplicate thereof to the clerk of the peace for the county, to be by him filed, and which he is hereby required to file, among the records of his office, and for which he shall be entitled to demand and have from such under sheriff the sum of five shillings, and no more; and such appointment and duplicate shall not be liable to any stamp duty whatever.

VI. That each and every person so appointed sheriff and under sheriff and under she- as aforesaid, except the sheriffs of London and Middlesex and their under sheriffs, shall, before he enter upon the execution of his office, take the oath of office heretofore and now required by law, which oath shall be fairly written on parchment (without being subject to any stamp duty) and signed by him, and shall and may be sworn before the barons of his Majesty's exchequer or any of them, or any one of his Majesty's justices of the peace for the county of which he shall be appointed sheriff or under sheriff; and the same shall be thereupon transmitted to the clerk of the peace for the same county, who is hereby required to file the same among the records of his office, and for which he shall be entitled to demand and have from such sheriff or under sheriff the sum of five shillings, and no more.

Prisoners and writs to be

turned over by sheriffs at the

expiration of

their office to

the incoming

sheriff.

VII. That every sheriff of any county, city, liberty, division, town corporate, or place shall at the expiration of his office make out and deliver to the new or incoming sheriff a true and correct list and account under his hand of all prisoners in his custody, and of all writs and other process in his hands not wholly executed by him, with all such particulars as shall be necessary to explain to the said incoming sheriff the several matters intended to be transferred to him, and shall thereupon turn over and transfer to the care and custody of the said incoming sheriff all such prisoners, writs, and process, and all records, books, and matters appertaining to the said office of sheriff; and the said incoming sheriff shall thereupon sign and give a duplicate of such list and account to the sheriff going out of office, to whom the same shall be a good and sufficient discharge of and from all the prisoners therein mentioned and transferred to the said incoming sheriff, and the further charge of the execution of the writs, process, and other matters therein contained, without any writ of discharge, or other writ whatsoever; and the said incoming sheriff shall thereupon stand and be charged with the said prisoners, and also with the execution and care of the said writs, process, and other matters, contained in the said list and account, as fully and effectually as if the same writs and process had been turned over by indenture and schedule; and in case any sheriff shall refuse or neglect at the expiration of his office to make out, sign, and deliver such list and account as aforesaid, and to turn over the