Todd. v M'Keevir

• Jurisdiction: Ireland
• Judgment Date: 13 February 1895
• Date: 13 February 1895
• Court: Court of Appeal (Ireland)

Todd

and

M'Keevir (1).

Appeal.

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1895.

Practice — Interpleader — Summoning order — Sheriff's costs.

When the sheriff obtains a summoning order in interpleader, and the claim by the third party fails, the sheriff is entitled to have his costs of the order against the execution creditor, and the execution creditor has his remedy for them over against the unsuccessful claimant.

M'Cann v. Birch (2 L. R. Ir. 500) overruled. The former practice of the Exchequer Division adopted.

Appeal, by the sheriff of the city and county of Londonderry, from so much of the order of the Queen's Bench Division dated May 4, 1894, as refused him the costs of a summoning order obtained by him on January 22, 1894.

On May 11, 1893, a writ of fi. fa. was issued out of the Queen's Bench Division in this action, and directed to the sheriff of the city and county of Londonderry, directing him to levy the sum of £55 5s. 1d. of the defendant's goods.

On January 11, 1894, the sheriff under this writ seized certain goods which he believed belonged to the defendant, but which were forthwith claimed by the defendant's brother, Michael M'Keevir, under a bill of sale.

On January 22, 1894, the sheriff obtained an interpleader order, by which an issue was directed to try the property in the goods seized, and liberty was given to the sheriff to deliver the goods to the claimant upon receiving sufficient security, and in default thereof to sell the same and bring the proceeds into Court. When the sheriff was applying for this order his counsel asked for costs, but the Judge refused to make any order as to costs for the present, without prejudice to any application which the sheriff might make after the return of the issue.

The issue was found in favour of the plaintiff, Todd, who thereupon moved for an order that the sheriff should proceed to sell the chattels seized by him under the writ of fi. fa., or a

competent part thereof, and should out of the proceeds of such sale pay the amount due to the plaintiff on foot of the said writ, and that the claimant should pay to the plaintiff the costs of and incidental to the interpleader issue, when taxed and ascertained, including the costs of the application.

On this motion the Court, having heard counsel both for the claimant and the sheriff, who again applied for his costs, made the following order (dated May 4, 1894):—“That the finding of the jury and the proceedings in the said interpleader issue be entered up of record pursuant to the statute, and that Michael M'Keevir the claimant (plaintiff in said issue) do pay to the said R. H. Todd (the defendant in the said issue) the plaintiff in this action his costs by him properly and necessarily incurred of the interpleader issue order of January 22, 1894, the costs of this motion, and the costs of said issue, and all costs necessarily incurred by the said R. H. Todd in respect of such proceedings, and that it be referred to the proper officer to tax, ascertain, and certify the same, and that the said Michael M'Keevir do pay to the sheriff the sum of £2 10s. for costs and expenses of detention rendered necessary by reason of his claim.” The Queen's Bench Division thus refused (following the hitherto usual practice) to give the sheriff his costs of obtaining the interpleader order, or of any subsequent proceedings.

The sheriff appealed from this decision.

Campbell, Q.C., and Gaussen, for the sheriff:—

Smith v. Darlow (1) finally settles the right of the sheriff to the costs of obtaining the summoning order in England, where Order LVII., Rule 15, is identical with Order LVII., Rule 15, in this country. This Order now regulates interpleader procedure, as the Interpleader Act (9 & 10 Vict. c. 64) has been repealed by the Statute Law Revision Act, 1892 (55 & 56 Vict. c. 19). Under the Interpleader Act, sect. 6, the costs were in the discretion of the Court. Formerly the Court of Exchequer allowed the sheriff these costs, but the other Common Law Courts refused them. On the passing of the Judicature...