sion of the Court. 1 & 2 For relief and protec employed in against goods c. 58, s. 6. and thereupon the Court shall and may hear and dispose of the same in the same manner as if the proceeding had originally commenced by rule of Court instead of the order of a Judge. of VI. And whereas difficulties sometimes arise in the execution tion of She- process against goods and chattels issued by or under the auriffs and thority of the said Courts, by reason of claims made to such goods other officers and chattels by assignees of bankrupts and other persons not execution of being the parties against whom such process has issued, whereby process Sheriffs and other officers are exposed to the hazard and expense and chattels, of actions, and it is reasonable to afford relief and protection in 1 & 2 Wm. 4, such cases to such Sheriffs and other officers; be it therefore enacted, that when any such claim shall be made to any goods or chattels taken or intended to be taken in execution under any such process, or to the proceeds or value thereof, it shall and may be lawful to and for the Court from which such process issued, or any Judge of such Court, upon application of such Sheriff or other officer made before or after the return of such process, and as well before as after any action brought against such Sheriff or other officer, to call before them or him, by rule of the Court or Judge, as well the party issuing such process as the party making such claim, and thereupon to exercise, for the adjustment of such claims, and the relief and protection of the Sheriff or other officer, all or any of the powers and authorities herein-before contained, and make such rules and decisions as shall appear to be just, according to the circumstances of the case; and the costs of all such proceedings shall be in the discretion of the Court or any Judge thereof. Interpleader by Sheriff. Inquiry by jury. When Sheriff may apply. Previous to the present act there was no means by which a sheriff could compel an execution creditor and a claimant to goods seized or about to be seized to interplead. The courts of equity declined to interfere in such a case, and there was no process by which the conflicting claims of the parties could be adjusted at common law. It is true that the sheriff might impannel a jury to enquire in whom the property in goods was vested (See Ch. Ar. Pr. 12th ed. p. 657), but the verdict of such a jury did not conclude the parties, the only result of it being that it had the effect of indemnifying the sheriff in making a return of nulla bona, or mitigated the damages in an action of trespass. The present statute has not abolished the sheriff's power of proceeding by writ of inquiry; and the court may in some cases leave the sheriff to pursue that course (Barrett v. Butler, 2 Ir. Jur. O.S. 32). According to the earlier practice it seems to have been considered that a sheriff could not apply for a summoning order unless he was in actual possession of the property seized (Molloy v. McDermott, 2 Ir. Jur. O. S. 32; Scott v. Lewis, 2 C. M. & R. 289). The words of the statute are however "when a claim shall be made to goods taken or intended to be taken," and it has accordingly been held that an actual seizure is not required to give the court jurisdiction, although the court will rarely interfere except where the goods have been actually seized (Lea v. Rossi, 11 be made. What claim Ex. 13; Day v. Carr, 7 Ex. 883). A claim must however have been Caim must actually made to the goods (Isaac v. Spilsbury, 10 Bing. 3). As to the nature of the claim necessary to give jurisdiction to the court it may be necessary to either legal or equitable, provided it be a claim to the goods or their give jurisdicproceeds (See Bateman v. Green, Ir. R., 2 C. L. 166, 607). Thus an tion. order may be applied for when a lien is claimed (Ford v. Baynton, I Dowl, 357); or where it is alleged that the debtor holds the goods not in his own right but as executor or trustee for others - as for instance for his wife (Burke v. Rutledge, 3 Ir. Jur. O. S. 148; Fenwick v. Laycock, 2 Q. B. 108; with which cases compare Roach v. Wright, 8 M. & W. 155); and where the landlord served a notice claiming a year's rent the court made an order (Nixon v. Wilks, 4 Ir. Jur. N. S. 242). In Bateman v. Farnsworth, 29 L. J. Ex. 365, it was however held that the court has not jurisdiction under such circumstances to make an order, and see Haythorn v. Bush, 2 C. & M. 689. A claim of priority between two execution creditors is not within the act (Salmon v. Jones, 1 Dowl, 369; Day v. Waldock, ib. 523); neither is a claim set up in respect of an interest as a partner (Holmes v. Mentze, 4 A. & E. 127). Where When the case is within the statute, the Sheriff is entitled to call upon the execution creditor and claimants to interplead, unless he has acted dishonestly, or his conduct has prejudiced either of the parties (Holt v. Frost, 3 H. & N. 821). It is true that formerly it was held that if the Sheriff was placed in circumstances which gave him an interest in Sheriff either side, the Court would not relieve him (Dudden v. Long, 1 Scott, interested. 281); and on this ground relief has been refused where the under Sheriff was the execution creditor or the partner of the execution creditor (Ostler v Bower, 4 Dowl. 605); or where the under Sheriff's partner appeared to be concerned for some of the parties (Duddin v. Long, ubi supra). In Holt v. Frost, it was, however, held to be no objection that the under Sheriff was the attorney of one of the claimants, and directed a claim to be made on her account, and it was said that so great a strictness does not now prevail as formerly, and that unless it be shown that one of the parties has been prejudiced, the Sheriff will be relieved. Where, however, the goods have been sold and the proceeds paid over to the execution creditor, the Sheriff cannot apply for relief (Inland v. Bushell, 2 H. & W. 118); neither can he where he has delivered part of the goods to the claimant (Braine v. Hunt, 2 Dowl. 391). The fact, however, of the Sheriff having, after seizure, been served with notice of an act of bankruptcy, and having, notwithstanding, sold, does not disentitle him to relief (O'Neill v. O'Neill, 5 Ir. Jur. O. S. 183). The Sheriff must in all cases, in order to entitle him to relief, apply promptly (Mutton v. Young, 4 C. B. 371; Alexander v Connell, 11 Ir. L. R. 325). order. Assuming that the Sheriff is entitled to relief, he must, in the first in- Obtaining stance, apply ex parte to the Court for a summoning order. The affi- summoning. davit in support of the application should state the facts. It should also state that there is no collusion, although an omission in this respect is not fatal (Donniger v. Hinxman, 2 Dowl. 424; Bond v. Woodhall, 2 C. M. & R. 601). If the claimant appear to support his claim, which he must do by affidavit (Powell v. Lock, 3 A. & E. 315; Campbell v. Conway, 7 Ir. Jur. O. S. 260), and the execution creditor appear also, an issue must Directing be directed, unless the parties consent to have the matter summarily dis- issue. Barring claim. posed of (Dechan v. Lynch, 2 Ir. Jur. O.S. 15). The claimant is usually made plaintiff and the execution creditor the defendant in the issue. In place of directing an issue, the Court or judge may, however, direct an action of trover to be brought (Gilhooly v. Coogan, 5 Ir. Jur. O. S. 244). If the claimant declines to take an issue, the Court will make an order barring his claim (Hoban v. Munroe, Ir. R. 1 C. L. 595); and if the claimant neglects to appear, his claim will also be barred as against the Sheriff, and he will be precluded from afterwards enforcing it (Ford v. Dillon, 2 N. & M. 662; Bowdler v. Smith, 1 Dowl, 417); but in case the execution creditor does not appear, the Court cannot it seems bar his claim as against the claimant (Donniger v. Hinxman, 2 Dowl, 424). Restraining The court has power under the section to restrain an action both against the sheriff and the execution creditor (Carpenter v. Pearce, 27 L. J. Ex. 143). action. Effect of finding. Costs of parties. Of Sheriff. Expenses. Bankruptcy of debtor. Where goods damaged. When an issue is directed under the act the finding upon it is conclusive between the parties, in the same manner as the finding of the jury in an ordinary case. An appeal lies from the decision of the Court in banc in cases of interpleader, in the same manner as in ordinary cases under sects. 40 & 41 of the C. L. P. Act, 1856 (Bateman v. Green, Ir. R. 2 C. L. 607). As regards the costs of the parties they rest in the discretion of the Court, and will generally be awarded to the successful party. As to the costs where the court makes an order barring the claim, see Hoban v. Munroe, Ir. R. 1, C. L. 595. As to the costs where the finding is partly in favour of one and partly in favour of the other claimant, see Vanston v. Symes, 14 Ir. C. L. R. Ap. 3, and as to the costs where a new trial is awarded, see Doolan v. Gorman, 6 Ir. Jur. N. S. 366. In the Exchequer the Sheriff as a general rule is allowed his costs of obtaining the interpleader order (Gilhooly v. Grogan, 5 Ir. Jur. O. S. 244); but in the Queen's Bench and Common Pleas he does not get them (Cotton v. Cregan, 4 Ir. C. L. R. 250; Deehan v. Lynch, 2 Ir. Jur. O. S. 15). No costs as a general rule are allowed until the termination of the proceedings (Hood v. Bradbury, 6 M. & G. 981). As regards the expenses incurred by the Sheriff in keeping, etc., the goods, he will in general be allowed those incurred after (Yates v. Meehan, 11 Ir. C. L. R. Ap. 1); but not those before the making of the summoning order (Kelleher v. Lane, 8 Ir. Jur. N. S. 419). In Taaffe v. Tyrrell, 14 Ir. C. L. R. Ap. 27, it was held that the Sheriff is entitled to get from a claimant who succeeds the expenses of keeping live stock of which he might by giving security have obtained possession; and see further as to the Sheriff's right to expenses etc. ante p. 150. As to enforcing security for costs, see Hoban v. Munroe, Ir. R. 2 C. L. 74; Williams v. Crosling, 3 C. B. 957; Melin v. Dumont, 17 W. R. 673. Where an execution is levied by seizure, but the sale is suspended by an interpleader order, and before sale the execution debtor is adjudicated a bankrupt, the creditor loses the benefit of the execution (O'Brien v. Brodie, L. R. 1 Ex. 302). If in such a case the proceedings are discontinued the Sheriff cannot obtain the costs of the order though he has been declared entitled to them (McDonnell v. Doherty, 15 Ir. C. L. R. Ap. 3). An execution creditor is not liable to the person whose goods have been wrongfully taken in execution for any damage sustained by him in con sequence of their sale under an interpleader order (Walker v. Olding, 1 H. & C. 621). Where a Sheriff seized sheep to which a claim was made, and an issue having been directed under the interpleader act, the finding was in favour of the claimant, who thereupon sued the Sheriff for injury alleged to have been sustained by the seizure, the Court stayed the action and referred it to the Master to ascertain whether any deterioration had taken place in the value of the sheep (Butler v. Lloyd, 1 Ir. Jur. O. S. Ap. 80); see O'Neill v. O'Neill, 5 Ir. Jur. O. S. 183. ders, &c. this Act may dence. VII. And be it enacted, that all rules, orders, matters, and Rules, Ordecisions to be made and done in pursuance of this Act, except made in puronly the affidavits to be filed, may, together with the declaration suance of in the cause (if any), be entered of record, with a note in the be entered of margin expressing the true date of such entry, to the end that record, and the same may be evidence in future times, if required and to made evisecure and enforce the payment of costs directed by any such rule or order; and every such rule or order so entered shall have the force and effect of a judgment, except only as to becoming a charge on any lands, tenements, or hereditaments; and in case any costs shall not be paid within fifteen days after notice of the Payment of taxation and amount thereof given to the party ordered to pay the same, his agent or attorney, execution may issue for the same by fieri facias or capias ad satisfaciendum, adapted to the case, together with the costs of such entry, and of the execution if by fieri facias; and such writ and writs may bear teste on the day testing of of issuing the same, whether in term or vacation; and the She- Writs and riff or other officer executing any such writ shall be entitled to Sheriff's fees the same fees and no more as upon any similar writ grounded 4 c. 58, s. 7. upon a judgment of the Court. costs. As to the 1 & 2 Wm. VIII. And be it enacted, that this Act may be amended or Act may be repealed by any Act to be passed in this present session of Par- amended, liament. &c. 9 & 10 VICT., CHAP. XCIII. An Act for compensating the Families of Persons killed by Acci dents. [26th August, 1846.] Whereas no action at law is now maintainable against a person who by his wrongful act, neglect, or default may have caused able against any person the death of another person, and it is oftentimes right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in An action to this present Parliment assembled, and by the authority of the same, be maintain that whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action death of the for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. causing death through neglect, etc., notwithstanding the person in jured. Action to be relations, brought by and in the II. And be it enacted, that every such action shall be for the for the bene- benefit of the wife, husband, parent, and child of the person fit of certain whose death shall have been so caused, and shall be brought by and shall be and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, in such shares as the jury by their verdict shall find and direct. name of executor or ad ministrator of the deceased. By 27 & 28 Vict. ch. 95 (which see post) where no action is brought within six months by the personal representative of the person killed, an action may be brought by the persons beneficially interested in the result of the action. Accord and satisfaction with the deceased during his lifetime is a good answer to an action under the act (Read v. The Great Eastern Railway Co. L. R. 3. Q. B. 555). Where the wrongful act, neglect, or default resulting in death has also been productive of damage to the personal chattels of the deceased, the executor may maintain separate actions under this act and for the damage to the personal chattels (Barnett v. Lucas, Ir. R. 5 C. L. 140). It has been decided that the jury in estimating the damages to be recovered under this act, cannot take into consideration the mental suffering of the survivors, or loss of society which they have sustained, but are to award them compensation for pecuniary loss alone (Blake v. Midland Railway Co., 18 Q. B. 93); and see further as to the question of pecuniary loss, Duckworth v. Johnson, 4 H. & N. 653; Pym v. Great Northern Railway Co., 4 B. & S. 396; Dalton v. South Eastern Railway Co., 4 C. B. N. S. 296; Franklin v. South Eastern Railway Co., 3 H. & N. 211. Where an action was brought by a widow for damages upon the death of her son, aged fourteen, who had never earned any wages, but whose capabilities were valued at sixpence per day, the probability that he would have enabled his mother to earn more, or would have devoted part of his earnings to her support, was held to be evidence |