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cumstances of the case, they might deviate from the strict practice of the Court, and grant the present application.


v. Smith.

Rule absolute accordingly.

ISAAC v. SPILSBURY. THIS was a sheriff's rule under the Interpleader Act, In order to in(1 & 2 W. 4, c. 58, s. 6). It appeared that the sheriff duce the Court seized goods under a fi. fa., and the defendant's wife laid der the Inter

pleader Act in claim to them, on the ground that they were vested in cer- favour of the tain trustees to her separate use.

Soon after the defen- tual claim to the

sheriff, an acdant petitioned the Insolvent Court for his discharge. On property seized the appearance-day to the rule, the trustees of the defendant's wife disclaimed any intention to interfere, and no one appeared on the part of the provisional assignee.

must be made.

Per Curiam.-The facts of this case do not bring it within the 1 & 2 W. 4, c. 58. In order to bring it within that act, a claim must be made to the property. Here, however, no claim is really made; but the sheriff, being alarmed, calls upon persons to come before the Court and make claims. Such a case is not within the act, and, therefore, all we can do is to discharge the rule.

Rule discharged.

A week's time was given to the sheriff, in order to sell the goods and return the proceeds.


IS DECLARED AND ORDERED, That, in all cases in which a defendant shall have been or shall be detained in prison


Reg. Gen.

on any writ of capias or detainer, under the statute 2 W. 4, c. 39, or, being arrested thereon, shall go to prison for want of bail, and in all cases in which he shall have been or shall be rendered to prison before declaration on any such process, the plaintiff in such process shall declare against such defendant before the end of the next term after such arrest or detainer, or render, and notice thereof, otherwise such defendant shall be entitled to be discharged from such arrest or detainer, upon entering an appearance according to the form set forth in the aforesaid statute, 2 W.4, c. 39, schedule No. 2; unless further time to declare shall have been given to such plaintiff by rule of Court, or order of a Judge.

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IT IS ORDERED, That, from the present day, in all actions against prisoners in the custody of the Marshal of the Marshalsea, or of the Warden of the Fleet, or of the Sheriff, the defendant shall plead to the declaration at the same time, in the same manner, and under the same rules, as in actions against defendants who are not in custody.

(Signed by all the Judges).





Michaelmas Term,


Bowen v. BRAMIDGE.

1833. This was an issue (arising out of the motion in Bram- Where an issue idge v. Adshead) (a), which was directed by the Court to rection of the

is tried by dibe tried to determine the right to certain goods taken in Court, under the execution by Bramidge. A verdict having been found in Act, the unsuc

cessful party is favour of Bowen, R. V. Richards obtained a rule nisi liable for the calling on the defendant to shew cause why the sum of costs,

A party who 111. 48. should not be paid out of Court to the plaintiff, applies to the

Court by moand why he should not have his costs of the action of tro- tion, without ver and of this application.

having made application to the

opposite party to Talfourd, Serjt., shewed cause. He said, that, if the do what the rule

calls on him to Court put such a construction upon the act that the party do, is not enti

tled to the costs

of the rule, if the opposite party, on shewing cause, confines himself to the question of costs.

(a) Ante, p. 59.



P. P. C.



who fails is to pay all the costs, it would bear very hard upon his client, but he could not oppose the present motion: he objected also to the payment of the costs of this rule, because there had been no previous application to the defendant.


R. V. Richards, contrà, contended that he was entitled to the costs of the rule, as he could not have got the money out of Court without a motion; and that, unless it was to be an universal rule that no party can have costs unless there has been a previous application, he was entitled to have this rule made absolute with costs.

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BAYLEY, I think the party who succeeds is entitled to the costs of the action, and that the party who fails must pay them; but, as to the costs of this rule, I think the plaintiff is not entitled to them, no previous application having been made to the defendant. If he had been applied to by Bowen to pay him the costs of the action, this application would probably have been unnecessary. No opposition has been made, except to that part of the rule which prayed for costs.

Vaughan, B.-All the costs ought naturally to fall on the party who fails. The Interpleader Act was intended to be in aid of sheriffs; and it is not because a particular case of hardship happens that the act is to be called a bad act.

Rule absolute, without costs.

or demand does

1833. Watson v. ABBOTT. This was an action for running down a ship. The The act authorissue in this action was tried in the sheriff's court by

izing the sheriff

to try issues virtue of a writ of trial issued under the 3 & 4 Will. 4, where the debt c. 42, s. 17. Upon the trial the plaintiff' was nonsuited. not exceed 201. A rule nisi for setting aside the nonsuit having been ob- applies only to tained by Hill, on the ground of misdirection by the niary demands, learned secondary,

the sheriff or his

deputy has the Petersdorff shewed cause.—The secondary has the power to nonpower to nonsuit.

and not to torts,

Semble, that

BAYLEY, B.- I have no doubt that the secondary had power to nonsuit, for he is put in the situation of a Judge at Nisi Prius (a); but had he power to try such a question as this?

Petersdorff.-The order was obtained by the plaintiff.

Bayley, B.-You cannot insist that this is within the act. The proceedings are coram non judice. The act only extends to debts and pecuniary demands.

any debt

VAUGHAN, B.-The words of the act are, “ or demand where the sum sought to be recovered and indorsed on the writ of summons shall not exceed 201.," &c. There could have been no debt here indorsed on the writ.

Rule absolute for setting aside the nonsuit.

(a) This point was made by Hill in moving for the rule nisi, but abandoned by hin, Lord

Lyndhurst and the rest of the
Court appearing to be against

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