
    No. 1705.
    Ex Parte Ferguson, Sheriff, In Re Sullivan, Drew & Co. v. Hamblin.
    November Term, 1884.
    
      May 9, 1885.
    
      Simonton ft Barker, for the sheriff. Smythe ft Lee, for plaintiff and other judgment creditors. J. N. Nathans, for mortgagees.
   Opinion by

Mr. Chief Justice Simpson,

Hamblin gave a chattel mortgage to several of his creditors. After-wards, but before condition broken, several other creditors levied attachments upon the property covered by this mortgage, some of which attachments were afterwards vacated. After this levy, but before the condition of the mortgage was broken, the mortgagees demanded these goods from the sheriff, who refused to surrender them. The claims upon which the attachments were issued were reduced to judgment, and the executions thereon were levied on these same goods. This action was then commenced by one of these judgment creditors against all other claimants to have the mortgage declared fraudulent, and for a sale of the goods and distribution of the proceeds according to the rights of the parties. A consent order was passed, directing the sheriff to sell the goods and put the proceeds into a savings bank, subject .to the further order of the court. In this action the mortgage was sustained, and as a result thereof, the judgment and attaching creditors -would receive nothing.

The sheriff then intervened by petition, praying that he be allowed to reimburse himself for his expenses, disbursements, and costs. Kershaw, J., decreed that the sheriff pay the fund in bank, together with all accumulated interest, to the mortgagees, less the actual disbursements and expenses of said sheriff necessarily incurred in the sale so made under and since the order of sale, together with commissions on the amount of such sales; also that the complainant pay the costs of clerk and master in this cause, and that every other party pay his own costs; and that the sheriff vouch his claims in this cause to be paid by the parties liable. On appeal, held—

1. That the sheriff is entitled to reimburseiiimself out of the proceeds of sale for all expenses and disbursements since the institution of this action.

2. But not for expenses and disbursements in and about the taking and safe keeping of these goods under the attachments and executions prior to the commencement of this action. Mr. Justice McIver dissenting.

8. That the sheriff may vouch his bill of disbursements and costs in this cause, but not his bill for expenditures incurred in the attachment suits. Mr. Justice McIver dissenting as to disbursements (distinguishable ' from costs) incurred in the preservation of the property (before this action was brought), out of which this fund was realized.

4. That the mortgagees are entitled to the interest accrued on the fund while on deposit in the bank.

5. That this being a chancery case, the general direction of the Circuit judge as to costs will not be disturbed. Judgment modified.  