On the last day of term the rule was made absolute, no cause being shewn. In the following Hilary Term, Justice applied to open the rule, in order that the question on the construction of the rule of Court might be discussed. PARKE, J.-The Judges have considered that rule, and we are of opinion that the object of it, as well as its intention, is, that the defendant should be allowed his costs on all issues found for him. There can be no necessity, therefore, for granting the rule. Rule refused. 1833. MILNER บ. GRAHAM. MYERS, Knt., v. Cooper. W. H. WATSON shewed cause against a rule for dis- Mansel, contrà, contended, that the plaintiff ought to have given notice that he would take the cause as undefended at the last sittings in the term. If he had so done, the mere assertion by the defendant's counsel, that the cause was defended, would only have delayed the trial (a) Ante, Vol 1, p. 194. 1833. MYERS v. COOPER. of the cause until the first sitting after term. Nothing but special circumstances could have induced the Court to allow it to keep its place in the list. The plaintiff might, if he had thought proper, have then proceeded to trial, notwithstanding the pressure of business in the Court. LITTLEDALE, J.-It appears to me that the plaintiff has sufficiently complied with the rule, and therefore that the defendant is not supersedeable. The delay thus caused has not been produced by the carelessness of the plaintiff, but by the amount of business to be transacted in the Court. The delay has not been that of the plaintiff but that of the Court. Rule discharged. Where the sheriff applies for relief under DONNIGER v. HINXMAN. BISHOP v. Same. THIS was a sheriff's rule under the 1 & 2 Will. 4, c. 58, s. 6. It appeared that the sheriff, in the former of the Interpleader the two above cases, had levied on the goods of the de Act, he need sion with the not in the affi- fendant, and almost immediately after a fi. fa., at the suit davit in support of the applicaof the second plaintiff, was delivered to him. After he tion deny collu- had seized, he received notice from the assignees of the defendant of a fiat having issued. A Major Campbell ecution creditor claimed the goods under a bill of sale, and the landlord. on being served gave notice of rent in arrear. claimants. Where an ex does not appear with the sheriff's rule, the Court cannot bar his claim. Jeremy appeared for the sheriff. W. H. Watson appeared for the assignees, and contended that the sheriff was not entitled to the relief he prayed, as he had not, in the affidavit in support of his application, denied collusion with the parties claiming the property. Such an allegation, he contended, ought to be introduced in the affidavit, according to the provisions of the Interpleader Act. By sect. 6 of that act it was pro- 1833. DONNIGER บ. HINXMAN. (a) Ante, Vol. 1, p. 636. sent act. was an application by the sheriff for relief under the preThere Lord Lyndhurst, in alluding to the special circumstances of the case, observed-" The object of the act of Parliament was to afford relief to the sheriff, where two parties are claiming the property, by making them fight it out; but he must have either the goods or the money in his possession. It does not apply to a case where he has paid over the money to one of the parties. The condition in the first clause is, that the party does not collude, and is ready to bring the money into Court. The words are, that such defendant does not in any manner collude with such third party, but is ready to bring into Court, or to pay or dispose of the subject-matter of the action in such manner as the Court (or any Judge thereof) may order or direct.' The obvious meaning of that clause is, that the party applying has got in his possession the property in respect of which he is sued, and to which he claims no right; and I think that this clause governs the whole act." The judgment of Mr. Baron Bayley, also, was to the same effect, though rather stronger. His Lordship observed, that "the act does not apply to such a case as this, where the sheriff has paid over the money. The powers and authorities to be exer cised by the Court for the relief of the sheriff, are in the 6th section expressly stated to be such powers and authorities as in that act are before contained,' which renders it necessary to refer to the preceding sections to ascertain the extent and application of those powers and authorities. Then, one condition in the first section is, that the party applying for relief shall be ready to bring the subject-matter of dispute into Court, or to dispose of it as the Court shall direct. The act is a substitution for the remedy by bill of interpleader." From this mode of viewing the act by the Court in that case, it was clear that the sheriff ought to deny collusion. Again, the case of Cook v. Robert Allen (a) was to the same effect. There, Mr. Baron Bayley said, "It is not at all clear that the sheriff ought not to deny collusion." LITTLEDALE, J.-It does not appear to me that it is necessary for the sheriff to deny collusion, although it may be proper that a private person, not standing in the situation of a public officer, should be required to make such a denial (b). Erle appeared for the plaintiff Bishop. Boileau, for Major Campbell, Follett, for the landlord. No one appeared for Donniger. W. H. Watson contended, that, as Donniger, who was one of the claimants, he being an execution creditor, had been served with the sheriff's rule, and did not appear, the Court should bar his claim. LITTLEDALE, J.-Donniger is an execution creditor, and the question between him and Bishop is, who has the priority of execution. He does not stand in the situation of a third party claiming the goods seized by the sheriff; but the power of the Court to bar claims is only in the case of a third person. By sect. 3 of the act, it is provided "that if such third party shall not appear upon such rule or order to maintain or relinquish his claim, being duly served therewith, or shall neglect or refuse to comply with any rule or order to be made after appear. (a) Ante, p. 11. (b) In the following Easter Term Mr. Justice Taunton pro nounced a similar decision in the 1833. DONNIGER V. HINXMAN |