warrant, and a demand of the debt and costs and expenses of levy, on the premises where the execution debtor's goods are, amounts to a levy. Bissicks v. Bath Colliery Co., 2 Ex. D. 459; 3 Ex. D. 174, C. A., overruling Nash v. Dickenson, L. R., 2 C. P. 252. And where there has been a levy, the sheriff is entitled to poundage, although there has been no sale. Bissicks v. Bath Colliery Co., supra; Mortimer v. Cragg, 3 C. P. D. 216, C. A., overruling Roe v. Hammond, 2 C. P. D. 300. Where a receiving order in bankruptcy is made against the execution debtor, after the sheriff has seized his goods, and before sale thereof, the right of the sheriff to his costs of execution is reserved to him by the Bky. Act, 1883, s. 46 (1), and Bky. Act, 1890, s. 11, ante, p. 1128. These costs do not include poundage. In re Ludmore, 13 Q. B. D. 415. In Miles v. Harris, 12 C. B., N. S. 550; 31 L. J., C. P. 361, the bailiff, after having been two days in possession, discovered that the judgment had been irregularly signed, and withdrew. The judgment was subsequently set aside. It was held, that the plaintiff was not entitled to poundage. It seems that the sheriff is now entitled by these sections to charge for the cost of advertisements directed by sect. 145 (vide ante, p. 1278), of the sale by auction of the debtor's effects; Braithwaite v. Marriott, 1 H. & C. 591; 32 L. J. Ex. 24, decided otherwise under the Bky. Act, 1861, ss. 73, 74, for the former of these sections was limited to the case of bankruptcy. See further, as to sheriff's fees, 1 Chit. Prac. 12th ed. p. 635. As to action against sheriff for false return of a rescue, whereby the plaintiff was attached, see Brasyer v. Maclean, L. R., 6 P. C. 398. ACTIONS BY AND AGAINST SOLICITORS. ACTIONS BY SURGEONS OR OTHER MEDICAL PRACTI- See ante, pp. 492 et seq. ISSUES UPON INTERPLEADER ORDERS. Rules, 1883, O. lvii., now replace the practice under 1 & 2 Will. 4, c. 58; 1 & 2 Vict. c. 45, s. 2; and the C. L. P. Act, 1860, as to interpleader. Issues on interpleader orders are now directed under Rule 7. When obtained on the application of a sheriff, the claimant is commonly made the plaintiff, and is then entitled to begin on the trial, and the execution creditor the defendant. The evidence depends on the question to be tried. It is generally desirable that objections which prevent the trial of the matter really in question should be waived at Nisi Prius, in order that all the information which it was the object of the issue to obtain may be supplied. The court, moreover, did not give effect to every technical objection as in an ordinary trial. Waterton v. Baker, post, p. 1282, per Blackburn, J.; Gugen v. Sampson, 4 F. & F. 974, per Channell, B., and see cases below. It has, however, been said more recently that there is now "no difference between the evidence received on the trial of an interpleader issue and in other cases," per Mellor, J., in Emmott v. Marchant, 3 Q. B. D. 556. The following points have been ruled : Generally, the judgment creditor, who has seized under a fi. fa., and is in possession when the claim is set up, has a primâ facie title, which the claimant must rebut, and the latter must therefore begin at the trial. Edward v. Matthews, 4 D. & L. 721. In interpleader between one who claims as assignee of the judgment debtor and the judgment creditor, the admissions of the assignor, before the date of the assignment, that he was indebted to the plaintiff (claimant), are not evidence for the plaintiff that the debt was a bona fide one. Coole v. Braham, 3 Exch. 183. The question on interpleader was, whether the plaintiff had any property in the goods as against the defendant, the execution creditor: held, that if the plaintiff had a lien on them against the original debtor, he maintained the issue. Rogers v. Kennay, 9 Q. B. 592. On an issue to try whether a firm consisting of the defendants were indebted to the plaintiff's firm, it was no objection at Nisi Prius that some of the parties to the record are members of both firms, although in an action it would be otherwise. Bosanquet v. Woodford, 5 Q. B. 310. So, even before the J. Act, 1873, on an interpleader issue the court considered the equitable rights of the parties; Rusden v. Pope, L. R., 3 Ex. 269; Bank of Ireland v. Perry, L. R., 7 Ex. 14; Duncan v. Cashin, L. R., 10 C. P. 554; Engelback v. Nixon, Id. 645; and now under sect. 24, cited ante, pp. 298, 299, the court is to give effect to all equitable estates, interests, and principles. On an issue between an execution creditor and assignee in bankruptcy, stating the execution and the fiat, where the question was whether the execution was valid as against the fiat, the creditor was not permitted to dispute the bankruptcy. Linnit v. Chaffers, 4 Q. B. 762. But where the question was, whether the plaintiffs were entitled to the goods seized, as against, and free from, the defendant's execution, and whether they were liable to be seized as against the plaintiffs: the plaintiffs were put to strict proof of the bankruptcy. Lott v. Melville, 3 M. & Gr. 40. But under the Bky. Act, 1869, this evidence is readily obtained, vide ante, pp. 1101 et seq. The assignee, A., of a Lloyd's bond given by a railway company, sued the company in the name of the obligee, and compromised the action by taking an assignment of all the rolling stock of the company; another creditor, B., subsequently obtained judgment against the company, and took the rolling stock in execution: it was held, on an issue between A. and B., that B. could not dispute the original legality of the bond, and that the conveyance to A. was valid as against B. Blackmore v. Yates, L. R., 2 Ex. 225. Where the trustees of the debtor's wife claimed the goods against an execution creditor, and the issue was, whether the goods belonged to the debtor or not, the trustees, who were parties to the issue as defendants, were not permitted to show that the debtor was a bankrupt, and that the goods vested in his assignees, who had not interfered or claimed them. Carne v. Brice, 7 M. & W. 183. Here the execution creditor was prima VOL. II. 00 facie entitled to the goods, and the title of the claimants was unconnected with that of the assignees. See also Belcher v. Patten, 6 C. B. 608. But where the claimant took under a conveyance by the debtor, which was alleged to be in itself void as an act of bankruptcy, the judgment creditor (defendant) was held entitled to show this, on issue joined as to the property of the claimants, in the goods seized under the fi. fa. Chase v. Goble, 2 M. & Gr. 930. So the execution creditor may defeat the claim by establishing a title to the goods in a third party, although superior even to his own. Richards v. Jenkins, 18 Q. B. D. 451, C. A. Thus he may set up the title of the trustee in bankruptcy of the claimant. Id. In this case the claimant had no title whatever. When the claimant is owner of an equity of redemption in the goods he is entitled to succeed. Usher v. Martin, 24 Q. B. D. 272. By Rules, 1883, O. lvii., r. 3 (replacing the C. L. P. Act, 1860, s. 12), relief by way of interpleader may be granted although "the titles of the claimants have not a common origin, but are adverse to, and independent of, one another." See as to the construction of this rule, Meynell v. Angell, 32 L. J., Q. B. 14; Best v. Hayes, 1 H. & C. 718; 32 L. J., Ex. 129; Tanner v. European Bank, L. R., 1 Ex. 261. Upon an interpleader issue whether certain goods seized in execution were "at the time of the seizure, the goods of the plaintiff," the plaintiff proved a bill of sale of the goods to himself; it was held that the defendant, the execution creditor, might set up, by way of answer, a prior bill of sale to a third party. Gadsden v. Barrow, 9 Exch. 514; 23 L. J., Ex. 134. But under the Bills of Sale Act, 1878, s. 8, the prior bill of sale, if unregistered, would be displaced, so far as is necessary to give effect to the execution: Ex pte. Blaiberg, 23 Ch. D. 254, C. A., vide ante, p. 1263; and if given as security for money would be void altogether under the Bills of Sale Act, 1882, s. 8, ante, p. 1257. If, however, the prior bill of sale were a deed of gift, it would, under Id., s. 5, avoid the later bill of sale given as a security for money. Tuck v. Southern Counties Deposit Bank, ante, p. 1269. Where A. mortgaged his chattels to B., and they were taken in execution, at the suit of C., a creditor of A.: it was held that in an issue between B. and C., B. could not after the mortgage had been satisfied rely on his bare legal title to the chattels. Waterton v. Baker, 17 L. T., Ñ. S. 494, H. T. 1868, Q. B. The execution creditor is not necessarily bound by an estoppel which would have prevented his debtor from disputing the title of the claimant. Richards v. Johnston, 4 H. & N. 660; 28 L. J., Ex. 322; Richards v. Jenkins, 18 Q. B. D. 451, C. A. In Shingler v. Holt, 7 H. & N. 65; 30 L. J., Ex. 322, the claimant was a married woman against whom a decree nisi for the dissolution of her marriage had been pronounced. An issue was directed as to whether the goods were, at the time of the delivery of the writ to the sheriff, the goods and chattels of S. S. (the maiden name of the plaintiff). The jury having found a verdict for the plaintiff, the court refused a new trial, or to enter into the question of the plaintiff's title, as a married woman against her husband. And see Bird v. Crabb, 30 L. J., Ex. 318; and Duncan v. Cashin, L. R., 10 C. P. 554. As to what assignments are fraudulent, see ante, p. 1249. As to the operation of the Bills of Sale Acts, vide ante, p. 1251. APPENDIX. Affidavit to put off trial on account of absence of material witness. In the High Court of Justice, Queen's Bench Division [or other division]. Between I, C. D., the above-named defendant [or Y. Z. of the solicitor in this action of the above-named defendant], make oath and say as follows: day of and 1. That issue was joined in this action on the that notice for the trial thereof was given for the 2. That E. F., late of is a material and necessary witness for me [or for the defendant] in the said cause, as I am advised and believe that I cannot safely proceed to the trial thereof, without the testimony of the said E. F. 3. That the said E. F. is now at [state the witness being abroad, if that be the fact.] 4. That in consequence of the notice of trial so given as aforesaid, I caused an inquiry to be made, &c. [stating the nature and result of the inquiry made after the witness, and the time when he is likely to attend, and other facts, if any, in support of the application]. Sworn, &c. C. D. [or Y. Z.] |