
    
      Richard Starnes vs. Darius Prince.
    
    “Whore the sheriff, on a rule to shew cause, returns, that he had not paid the money to the plaintiff, because the execution really belonged to a third person, the Court may order an issue made up — such third person to be the actor — to determine the right to the execution 5 and this, although such third person may not be represented in Court, or know, at the time, of the order.
    If at the next term it appears that such third person has not had notice of the order, the Court may give him further time to make up the issue.
    Defendant in a feigned issue, is never required to enter into a consent rule to pay the costs.
    
      Before Glover, J., at Union, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    “ A. fieri facias had been entered in the sheriff’s office in this case, and at October Term, 1852, the following rule was issued against John Gibbs, sheriff, at the instance of Matthias Myers, the administrator of Richard Starnes, deceased :
    
      “ ‘ On motion of T. & J. Dawkins, attorneys for Matthias Myers, administrator of R. Starnes, it is ordered, that John Gibbs, sheriff of Union District, show cause, on Saturday morning, at 10 o’clock, before Judge D. L. Wardlaw, at Union Court House, why the money in the above stated case has not been paid over to Matthias Myers, administrator of R. Starnes.’
    
      “ The sheriff’s answer to this rule having been heard, the-following order was passed :
    
      “ ‘ On hearing the rule against the sheriff, John Gibbs, and his answer thereto, on motion of T. & J. Dawkins, attorneys for M. Myers, administrator of It. Starnes, it is ordered, that an issue be made up, wherein W. J. Harris shall be plaintiff, and the administrator of R. Starnes, defendant, to try the question to which one the judgment and execution in the above case rightfully belong, and that the plaintiff file his suggestion at least thirty days before next Court; and it is further ordered, that W. J. Harris be served with a copy of this order.’
    “ The sheriff left a copy of this order at Wiley J. Harris’s most notorious place of residence, the 6th February, 1853. No suggestion has been filed, nor issue made up, as is required by this order.
    “A rule was issued, at the present term, against John Gibbs, sheriff, to show cause why he had not made and paid over the money in the above stated case ; and on hearing his answer to this last rule, and it appearing that'the administrator of R. Starnes and Wiley J. Harris interposed conflicting claims, I declined to settle their rights by a rule, preferring to carry out the order of Judge Wardlaw which properly directed an issue to be made up by suggestion, in which W. J. Harris should be the actor.
    “ The attorneys of R. Starnes’s administrator moved for an attachment against the sheriff, which was refused, because it appeared that W. J. Harris, and not the sheriff, was in contempt.
    “ The following order was then proposed :
    “ ‘ On motion of T. & J. Dawkins, attorneys for the administrator of Richard Starnes, deceased, it is ordered, that if Wiley J. Harris does not comply with the order made by Judge Ward-law, at the last term of this Court, and file his suggestion within thirty days from this day, that the sheriff proceed to collect the money and pay the same over to Matthias Myers, administrator of Richard Starnes, deceased.’
    “ Mr. A. W. Thomson, the counsel of W. J. Harris, opposed this order on various grounds; but further argument satisfied me that the rights of the parties should be determined by an issue, as directed by Judge Wardlaw, and not by a rule against the sheriff.
    “ The order was therefore passed, except that the time was extended to forty days to suit Mr. Thomson’s convenience.
    “ It is proper to add, that Wiley J. Harris submitted an affidavit, which, perhaps, purges his contempt in failing to make up an issue as directed by the order of this Court, at October Term, 1852, but which has, in no wise, weakened my conviction of the propriety of that order, and of the necessity of carrying out its directions.”
    Wiley J. Harris appealed on the grounds
    1. Because the order was made at the last term of this Court, without any notice whatever to the said Wiley J. Harris.
    2. Because, from the return to the rule on John Gibbs, esq., served on him at this term, it appeared clearly that R. Starnes really had no interest in this execution, and that D. Prince had paid the same to W. J. Harris, the assignee, which satisfied the execution.
    3. Because the Court, at the last term of this Court, if W. J. Harris had been a party before the Court, had not the power legally to make the order then made, but should have left the administrator of Starnes to pursue his legal remedy by action.
    4. Because his Honor, Judge Glover, erred in making an order that Wiley J. Harris should be compelled to file a suggestion, as ordered by Judge Wardlaw at the last term of this Court, when, as the said W. J. Harris contends, he was never legally served with a copy of said order, it not being such a paper as can be legally served by a copy left, as was done in this case.
    5. Because, if the Court were to make any such orders as have been made in this case, the same should only have been made on the condition of the administrator of R. Starnes entering into a consent rule to be liable for the costs, if the verdict of the jury should be in favor of W. J. Harris, the assignee of the execution.
    6. Because his Honor ruled that it was not indispensably necessary that the rale should be served on W. J. Harris thirty days before the sitting of this Court.
    
      Thomson, for appellant.
    
      Dawkins, contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case the Court is satisfied with the order made below.

Looking to the record, alone, there is nothing to prevent the plaintiff’s rule from being made absolute. It is only when Wily J. Harris’s claim is interposed, that it becomes necessary to suspend the plaintiff’s rule and to inquire to whom does the execution belong.

It is perfectly immaterial that the claim of Harris was presented to the Court, in October, by the sheriff, in his return to the rule, so far as Harris’s objection that he has been drafted” as a party is concerned. For he only had to disavow his interest in the execution, and then, he would have been absolved from all liability under the issue ordered; but he did not do so. This claim was again set up in opposition to the second rule, at the last Court.

It was a favor to him, that he should be permitted, then, to take the place in the issue which had been offered to him before, and which he had failed to occupy.

It may be that he had no notice of the order made, at the last October Court, before it was made. That, however, does not help him. For the issue was ordered to inform the Court, whether the facts stated by the sheriff were true. The order-permitted Harris to verify the facts, which the sheriff stated for him.

If he was not served with the notice of the order to make up the issue, the Judge below, in giving him further time, obviated that objection.

It is the party moving for an issue .that is required to enter into a consent rule to pay the costs. A defendant is never subjected to such terms.

The motion is dismissed.

Wardlaw, Frost, Withers, Whitner and Glover, JJ., concurred.

Motion dismissed.  