Common Pleas. the proper fee, and three shillings and four pence for summoning the E. T. 1847. heir. [TORRENS, J. We cannot now consider the amount of fees; the only question for us is, has our officer done his duty?] The COURT granted the motion with costs, being of opinion that the Sheriff had not any right to refuse to return the writ; but that on the contrary, the Court would compel him to return the writ, whether his fees be paid or not; and would leave him to his action for the recovery of any fees to which he might by law be entitled. Motion granted with costs. LEES บ. NOLAN. SADLIER v. O'BRIEN. G. J. CRAWFORD, on behalf of the defendant, moved that the service Meagher, for the plaintiff. The mandate in the body of the writ is correct as to the day. The day mentioned in the notice at the foot of the writ having been (a) 2 Price, 9. (e) 5 Taunt. 651. (b) 1 Chit. R. 615. (d) 1 Black. Dun. & Osb. 149. (f) Hayes R. 373. May 6. The Court will not set aside, as irregular, the service of capias ad respondendum, and the proceedings had thereupon, a writ of even though the notice at foot of the writ should require the defendant to appear on the 14th day of March, and the true return day of the writ be the 14th day of April. Common Pleas. LEES บ. E. T. 1847. a previous day to that upon which the defendant was served, the defendant cannot have been misled; he never could have supposed that the day named in the notice was the real day upon which he was required to appear. The cases cited on the part of the defendant have been overruled by Humphries v. Cullingwood (a); Harmer v. Lane (b); Clutterbuck v. Wiseman (c); Steele v. Campbell (d); Willan v. Collins (e); Wilson v. Stafford (f); Badgett v. Lee (g); Patten v. Patten (h). NOLAN. Per Curiam. This was clearly a mistake; the day referred to in the notice at foot of the writ having already passed, and that in the mandatory part of the writ being correctly stated, it was a mistake by which the defendant could not have been misled. The current of modern authorities, pursuing the course most consistent with reason and common sense, is, under circumstances similar to the present, adverse to the setting aside of the service of the writ and proceedings thereupon had, upon the ground of irregularity. In the cases of an opposite tendency, the authorities which we are now about to follow do not seem to have been brought to the notice of the Courts, and are in other respects not satisfactory. We must say— No rule upon this motion. Meagher asked for costs, on the ground that the objection made was technical and harassing in its nature. .TORRENS, J. There have been conflicting decisions, we cannot therefore give any costs. Crawford having sought for an enlargement of the time for pleading, it was eventually arranged between the parties that the defendant should be granted the same time for making payment of the debt and costs, as if the Court had given him further time to plead. (a) 1 Chitty R. 384; S. C. 2 B. & Ald. 642. (e) 1 Dowl. Pr. Ca. 35. (g) 2 Chitty R. 355. (6) 12 Moore, 523. (d) 1 Taunt. 424. (f) 2 Chitty R. 355. (h) 1 Cr. & Dix, 172. E. T. 1847. BURKE v. D'ARCY. HARVEY LEWIS, on the part of the late Sub-sheriff of the county of Dublin, moved that he be allowed to lodge in Court certain monies levied by him in this cause under a writ of fieri facias. This motion was founded upon the recent statute 9 & 10 Vic. c. 64, passed for the purpose of enabling Courts of Law in Ireland to give relief and protection against adverse claims made upon persons having no interest in the subject matter of such claims, and who have no means of relieving themselves from such claims, except through the expensive medium of that proceeding in equity usually denominated a bill of interpleader. The 6th section of that Act specially extends relief to Sheriffs and other officers employed in execution of process against goods and chattels. Counsel moved on the affidavit of the Sub-sheriff, stating that he had been served with a notice on the part of Joshua Watson, in which he styled himself the petitioning creditor of the defendant, and cautioned the Sheriff not to pay over the sum levied to the plaintiff, the defendant having committed one or more unequivocal acts of bankruptcy, and he, the said Watson, intending to sue out a commission of bankruptcy against the defendant; and that the Sheriff should be held responsible if he paid over those monies to any person other than the future assignee of the defendant under the bankruptcy. The affidavit also alleged, that another notice was served upon the Sheriff on the part of Michael Flood, who therein set forth the marriage settlement of the defendant and his wife, and the death of the latter, leaving one child; that the child was under age, and upon the death of its mother became entitled to a bond conditioned for the payment of £400 executed to the trustees of the settlement by the defendant; that judgment had been obtained on the bond; that the plaintiff, as surviving trustee, had issued execution thereon; that he, the said Flood, as one of the next-of-kin of the infant, intended to apply to the Court of Chancery to admit the infant as a ward of that Court, and cautioned the Sheriff, on pain of being held responsible, not to pay over the sum levied under that execution to the plaintiff or any person save such as the Court of Chancery should appoint. Fagan, on the part of the plaintiff opposed the motion, and Aprill 26. Irish Interpleader Act. A Sub-sheriff having made a levy under a writ of fieri facias, was allowed, under 9 & 10 Vic. c. 64, to lodge in Court the mo nies levied, de- plaintiff, call- An attachment for non compliance with an order of this Court will be issued against the Sheriff and not against the Sub-sheriff, the Court' taking no no tice of the lat ter officer, BURKE v. D'ARCY. E. T. 1847. moved that the Sheriff be ordered to pay the sum levied to the Common Pleas. plaintiff, contending that such notices as those read to the Court did not constitute sufficient proof of adverse claims, as required by the statute; and that the Sheriff could not incur any liability to an action by paying over the monies levied to the plaintiff, the party legally entitled to receive them as surviving trustee of the marriage settlement of the defendant.-[Per Curiam. This case falls within the statute; we think that the monies should be brought into Court, and (if the parties do not object) be invested in the funds until the right thereto be decided].-We object to the investment until we have, at the least, been paid our costs incurred in realising the fund. May 8. Lewis claimed costs for the Sheriff. TORRENS, J. Let the Sheriff bring the monies levied into Court; we think him entitled to deduct his costs out of those monies, the amount of costs we fix at £2. 10s. All further directions we reserve for future consideration, upon such application as may be made to the Court hereafter, upon notice to the claimants other than the party apply. ing. It is not necessary that notice should be served upon the Sheriff. The plaintiff should be cautious how he comes into Court upon light grounds, as he will do so at the risk of being personally visited with the costs of his application. On this day, upon a certificate of the officer of the Court that no monies had, up to the present time, been lodged to the credit of the cause by the Sub-sheriff_ Fagan moved for an attachment against the Sub-sheriff, on whose motion the foregoing order had been obtained. TORRENS, J. Take a conditional order for an attachment against the Sheriff; the Court takes no judicial notice of the Sub-sheriff. H. T. 1844. SAMUEL CROKER V. DAVID HUGHES and JOHN PHILBINE. (Exchequer of Pleas.) In this case, on a former day, a conditional order was granted, that John Bourke, Sub-sheriff of the county of Mayo, do return the writ of fieri facias in this cause, returnable on the 2nd of November 1841, and marked for the sum of £365. Os. 6d., unless cause be shown to the contrary in six days. Jan. 19. A Sheriff, to whom a writ of fieri facias has been directed and execution levied thereon, made no return thereto will be re to that writ, although more than six months out of office. The practice that a Sheriff, who is months out of office, will not make a return be required to to a writ di. more than six rected to him The order was obtained on the affidavit of the defendant David during his sheriffalty, Hughes, which stated that in Trinity Term 1841 the plaintiff on on motion by obtained a judgment against the defendants for the sum of £365 the defendant damages, expenses and costs; that on that judgment the plaintiff quired to make issued a fieri facias against the defendants, directed to the Sheriff of a return the county of Mayo, tested the 12th day of June 1841, marked for the sum of £365. Os. 6d., and returnable into this Court the 2nd of November 1841; that on the 26th of August 1841 John Bourke, the then Sub-sheriff of Mayo, seized divers goods of this defendant under said writ, and subsequently in September following sold the same, • amounting in value to £1800; that defendant verily believed they realized a sum of £1400; that he had not received, any time since, either from the Sheriff or Sub-sheriff or any other person, any account whatsoever of the produce of such sale, although he had often made applications to that effect; and that he believed that the said writ had not been returned by the Sheriff or any other As cause, separate affidavits were sworn and filed by the solicitor for the High-sheriff and also by the Sub-sheriff, in which they stated that the writ was executed, and was out of return during the sheriffalty of the Honorable Geoffrey Brown, High-sheriff of said county; that the said then High-sheriff had been since out of office for a period of one year and nine months; that they did not believe defendant at any time, until the present application, required a return to said writ; that since the execution of the writ, three several actions of trespass had been brought by the defendant and his son-in-law, and were still pending, to try the validity of said seizure; that in the execution of said writ the Sub-sheriff seized, amongst other goods, a quantity of timber belonging to the defendants, part lying on the quay at Killala and part on board a vessel; person. whilst in office, applies only to motions on be half of the |