out of court, or to have the goods delivered to him, though he has not previously applied for the consent of the other party.(1) An affidavit in support of the application to the court should be intituled in the original cause.(*)

If the claimant has not appeared to show cause, the court or judge cannot order him to pay the costs of the application. (3) So, if the execution creditor do not appear, it seems he cannot be made to pay the claimant's costs.(*) The claimant, will, however, be made to pay the execution creditor's costs, when the former abandons his claim, (3) or neglects to pay money into court as ordered. (6) So, the execution creditor will be made to pay the claimant's costs, if he abandon his claim.(7)

The costs of an issue, or of several issues, when nothing is said about them in the order, follow the event as in ordinary cases, and are paid by the unsuccessful party, (8) though the order may have been made by a judge at chambers with consent. The assignee of a bankrupt, if unsuccessful, must pay the costs as in other cases. (10)

Costs of the sheriff]-As the remedy by an interpleader issue is deemed for the protection and benefit of the sheriff, he is not generally allowed his costs of the application for the order; (1) unless the conduct of the claimant is vexatious, (12) or the claimant seeks to open the rule or order made, without any fault of the sheriff. (13) Where the sheriff had delayed the application while the parties were negotiating, and the claimant afterwards abandoned his claim,

(1) Meredith v. Rogers, 7 Dowl. 596; ibid. 319.

(2) Elliott v. Sparrow, 1. Har. & W. 370; Levi v. Ayle, 2 Dowl. N. S. 932.

(3) Grazebrook v. Pickford, 10 M. & W. 279; 2 Dowl. N. S. 249. Swaine v. Spencer, 9 Dowl. 347; Beswick v. Thomas, 5 Dowl. 458; Glazier v. Cooke, 5 N. & M. 680.

(5) Wills v. Hopkins, 3 Dowl. 346.

(6) Scales v. Sargeson, 3 Dowl. 787; 4 Dowl. 232.

(1) Dabbs v. Humphries, 1 Bing. N. C. 412; 3 Dowl. 377.

($) Bowen v. Bramridge, 2 Dowl. 213; Staley v. Bedwell, 10

A. & E. 145; see also ante, p. 436.

() Matthews v. Sims, 4 Dowl. 234.

(10) Melville v. Smark, 3 M. & Gr. 57; 3 Sc. N. R. 357.

(1) Bowdler v. Smith, 1 Dowl. 418; ibid. 430, 520, 528; Scales v. Sargeson, 4 Dowl. 232.'

(12) Cox v. Fenn, 7 Dowl. 50.

(13) Briant v. Ikey, 1 Dowl. 428; but it is otherwise if the time is merely enlarged, Tillyard v. Cave, 6 Bing. N. C. 261; 8 Sc. 511.

each was made to pay his own costs.(') Though the claimant does not appear, this is no ground for giving the sheriff his costs. (2) Nor can the sheriff include the costs of the interpleader rule in the levy.(3) If he has allowed an attachment to issue for not returning the writ, the rule may be made absolute on his paying the costs of the attachment.(4) If the rule or summons is discharged, the sheriff is often made to pay the costs, especially if he has shown want of promptitude or vigilance. (5) Where the sheriff had made the landlord a party to the rule, he was ordered to pay the rent to the latter, on security being given at the sheriff's expense, and also the landlord's costs of the application.(*)

The sheriff's claim to poundage depends on the legality of the seizure,(7) and he is generally ordered to pay the whole proceeds into court without deduction, to abide the event of the issue or action. (8) If the execution creditor succeeds in whole or part, then the poundage fees and expenses of execution will be payable, or a proportion, out of the proceeds; and if neither the execution creditor nor the claimant appear, the court will order part of the goods to be sold to pay the poundage fees and expenses.() Where the sheriff is ordered to keep possession of goods, &c., after the order of interpleader is made, he seems entitled to be paid the costs of doing so by the losing party,(") especially if he thereby acts out of his ordinary duty for the benefit of both the parties.(") So, he is allowed his costs of selling the goods, &c., by order of the court.(12)

(1) Dixon v. Ensell, 2 Dowl. 621.

(2) Jones v. Lewis, 8 M. & W. 264; 9 Dowl. 652.

(3) Hammond v. Nairn, 9 M. & W. 221.

(4) Almore v. Adeane, 3 Dowl. 408.

(5) Bishop v. Hinxman, 2 Dowl. 166; Clarke v. Lord, 2 Dowl. 227; Re Sheriff of Oxfordshire, 6 Dowl. 136.

(6) Clarke v. Lord, 2 Dowl. 227.

(7) Barker v. Dynes, 1 Dowl. 169.

() Ibid.; Clarke v. Chetwode, 4 Dowl. 635.

(9) Eveleigh v. Salsbury, 3 Bing. N. C. 298; 5 Dowl. 369.

(10) Dabbs v. Humphries, 1 Bing. N. C. 412; 3 Dowl. 377; Scales v. Sargeson, 4 Dowl. 231; Armitage v. Foster, 1 Har. & W. 208; Gaskell v. Sefton, 14 M. & W. 802; 3 D. & L. 267.

(11) Underden v. Burgess, 4 Dowl. 104

(12) Browne v. Delano, 6 Dowl. 293; Dabbs v. Humphries, 3 Dowl. 377; 1 Hodg. 4; West v. Rotheram, 2 Bing. N. C. 527.

CHAPTER XXXI.

PROCEEDINGS IN EJECTMENT.

I. EJECTMENT IN ORDINARY CASES.

(h) Mesne profits.

(i) Form of verdict.
(k) Costs.

(1) Death of party after
verdict.

10. Judgment and execution.

(b) What writs may issue.
(c) Teste and return of writ.
(d) Execution of habere
facias possessionem.
(e) Forms of writs of execu-

tion.

(a) Judgment; how and 11 Error.
when signed.

II. PROCEEDINGS WHERE EJECTMENT IS BY LANDLORD FOR FORFEITURE BY NON-PAYMENT OF RENT WHERE THERE IS NO SUFFICIENT DISTRESS ON THE PREMISES.

Ejectment is now the only action for the specific recovery

of land.

(a) Jurisdiction of court over proceedings.]—Previous to the passing of the Common Law Procedure Act, 1854, the proceedings in the action commenced by the service upon the persons in possession of the premises of a declaration, in which a fictitious lease to an imaginary plaintiff was stated, and it was alleged that he had entered and been ousted by an

imaginary defendant, and of an accompanying notice requiring the persons served to appear and defend the action. This declaration and notice are now abolished, and the entire proceedings altered and improved by the Common Law Procedure Acts, and the rules of court; but it is provided by the act of 1852, s. 221, that "the several courts and the judges thereof respectively shall and may exercise over the proceedings the like jurisdiction as heretofore exercised in the action of ejectment, so as to insure a trial of the title and of actual ouster, when necessary only, and for all other purposes for which such jurisdiction may at present be exercised, and the provisions of all statutes not inconsistent with the provisions of this act, and which may be applicable to the altered mode of proceeding, shall remain in force and be applied thereto." It has been said that the court exercises an equitable jurisdiction over the proceedings in an action of ejectment, which may be said to be peculiarly its own creature.(1)

2. The Writ.

The writ.]-By the Common Law Procedure Act, 1852, s. 148, (2) it is enacted, that "instead of the present proceeding by ejectment, a writ shall be issued." Sect. 159 provides, that "the writ shall state the names of all the persons in whom the title is alleged to be, and command the persons to whom it is directed to appear within sixteen days after service thereof in the court from which it is issued, to defend the possession of the property sued for, or such part thereof as they may think fit, and it shall contain a notice that, in default of appearance, they will be turned out of possession."

By landlord for recovery of lands not in London or Middlesex.]-By the Common Law Procedure Act, 1852, s. 217, it is provided, that "in all actions of ejectment hereafter to be brought in any of her Majesty's courts at Westminster, by any landlord against his tenant, or against any person claiming through or under such tenant, for the recovery of any lands or hereditaments in any county, except London or Middlesex, where the tenancy shall expire, or

(1) Per Bayley, J., in Thrustout v. Shenton, 10 B. & C. 111. (2) This does not apply to actions commenced before the act came into operation, Doe d. Smith v. Roe, 9 Exch. 127.