CIHM Microfiche Series (Moiiographs) ICMH Collection de microfiches (monographies) Canadian Inathuta for HIaterieal MIeroraprotfuetiona / InatKut eanadlan da nderocaproduetiona Matorlquaa MWbNoinpMwi Tht r Mmm^ Fwiww d Ak NHV b» .MbliapipMnlv D D D D I IcMHfiainpM •t^ UINM*! m/m n D I I W i l li MM ri 02: iRk « A Mtar Aw Mm ar MMkI/ UwM m w rMifera««*te tolMfitlt ■ I ^w^^w^n ^^^pv^^ ^^^^^v^ ^P^R^P^^ V^W^^N^^^^^W ^^^^^ fll^^^H kMM OMHai fMM fNMiRf/ MMp«n«W iwt#Mm lIVtMlli, C wi— iiii i l m liip i iii mrt i w. rm twm h iiiiBgottiw iKiinii nnmii tma/ 10X w filMt w Him * fMlMiiM inriifit □ MX ItX 12X Its rrm L'lMMMa MaMpo«Mt*n •m ns: I — I numti 1 D Mm(w)/ THto M liM*r HkM fraM/ UKMtftl'M-tMii □ TMtptpcfiMi/ Nfitfilll D D lltrtrfttoltaniwii •fiMIM/ THn * «pm * to MmiMn O l w IrH y t (N r l»< l »i i i> <» to Wwiliwi ax MX n »x 2«X ax D ax TtMCopy totha gMMroshy of : National Ubrary off Canada L'axampWra INm* tut raproduH siiea A la uinfcoalli da: BlbHotMqiia nationala du Canada Tha bnagaa appaa ri ng haia ara tha baat quality paaalbit eonaidarins tha condition and I of tiM originai eopy and In kaaping witli filming contract apacifficationa. Original coplaa In prfntad baginning with tlM front tho iaat paga with a printad or alon, or tha baeit covar whan othar original copiaa ai fkat paga with a printed or and annng on approprlflla« AR baginning an tna impraa* with a printad or Muatratad impraaaion. Tha laat raeordad frama on aaeh ahall contain tha aymboi -^ TIMIUEO"), or tha aymboi ▼ "CON- END"). IMapa. plataa. charta. ate., may ba fINnad at diffarant raduction ratioa. Thoaa too largo to bo antiraly Inehidad \n ono axpoaura ara flbnad baginning hi tha uppar iaft hand comar. loft to right «Ml top to bottom, aa many framaa aa roquiiad. Tha following bnagaa aidvantaa ont 4tA raprodultaa avac la aoto, cowpta tami da la co n dWon at da rammplalra ffNm*. at an avae laa conditiona du contrat da da la natiata ( par la oam dimi pwt. origbMNiK dont la couvartura an hnpri m da aont ffMmto an command an t plat at an tarminant aoit par la paga gui comporia una amprainta ou dmiatration, aoit par la aaeond la eaa. Toua laa autraa a n a m piai r aa aont famaa an common^ant par la qui eomporta una amprainta ou dliuatration at an tarminant par paga qui eomporta una trihi Un daa aymbola a auhfanta a p pa i aHr a aur la damlAra hnaga da chagua mieroflcho. salon la oaa: ia aymboia -^dgnlfia "A 8UIVIIE". la aymboM ▼ aignifia FW • ptonchaa, tablaaux, ate., pauvant Mra flbn«a i daa tawi da riduetlan dHfiranta. Loragua la do ou mantaat trap grand pour ttra raproidult an un aaul elehi, U eat fHm« « partir da rangia aupMaur gaucha, da gaucha k drolta, at da MM an oaa, an pranani m nemora 1 2 3 1 2 3 4 6 « mr oMir (ANSI owi no TBT CHMrr No. 3) 1.0 UIM 124 LI U lit U-Ui ^ ^PPLED IVHGE Ine l«U IM IM* Shwl .- .'■'■'2 •'•'■ '■"• ••• (TU) 2M-HM-ra< THE LAW OF INTERPLEADER. THE LAW OF INTEEPLEADER AM ADHUniRSID BT THE ENGUSH. IRISH. AMERICAN. CANADIAN AND AUSTRALIAN COURTS. WITH AN APPENDIX OF STATUTES. BT RODERICK JAMES MACLENNAN Of Oteocd* Ball. BarrUUr^Lmw, * TORONTO, CANADA. TORONTO: THE CARSWELL COMPANY, LIMITED LAW PUBLMHBRS. ' BOSTON BOOK CO.. BOSTON. U.&i. 1901. f M3+ ^aM •ooocdiiw to Act d the PwrliuMnt of OmumI* in tho nh < PREFACE. iui^ r !! ' ^'^ book i« the lega writer's oppor- Kmided by precedent to which he must bow, and if here «.d there he finds a gap to be fiUed, or a rei^irk is ciS^ for upon conflicting decisions, he must do w^Tn^^ m a hmnble spirit. The comparative antiquity of ^ auinor leel that he has been in the company of a livinir o^m m the great and growing body ^the li. Tte he finds sometbmg new in the last digests or renorts ^ tt^qu^on when to stop becomes aTSous'o^r^u t'S legal growth contmues, and new editions are necessary Bot always because ihe hwt one is out of print, h^l^^ giTM the result of hw htbour to the profession. of f^LTij'^T^^- *^ ^ ^«^"^ *^« '*°'»We ve^tion of some individual m respect of a single liability, caused Srf « ^r\'^^ ^'"^^ ^ *be Courts of Law for a tone, and then became obsolete. The Court of Chan- ce^also at an early period, assumed jurisdiction to provide a r«nedy and widened and foste-ed it. naming it inter- pleader, and wherever at any iime equitable p^ipL ha" rl PRXFACE. been applied in the administration of justice, bills or actions of interpleader may there be found. In 1831 an English Statute brought the proceeding again into TOgue in the Courts of Iaw. In giving these Courts interpleader juris- diction the Parliament of William IV. enacted, that in administering the remedy the Judges were to make such rules and orders as might appear to be just and reasonable, —very wide powers it may be observed. Since that date, this, the first of all Interpleader Acts, has been widely copied, with its just and reasonable or discretionary powers. It followed equitable interpleader over the Chan- nel into Ireland, across the Atlantic to the United States, Canada, Newfoundland and the Bermudas, around the Cape to India, and on to Australia, New Zealand and the Hawaiian Islands, while 'something like it is found in Japan. In Scotland as early as the fourteenth century a corresponding procMding was in use. It is known in Scots law as m«ttt- plepoinding; and in the course of time has there acquired in some respects a wider scope than interpleader, although it has a smaller and simpler body of law about it. From the English speaking Judges of the world has come an increasing number of reported decisions upon this branch of the law, while nearly sixty Legislatures have enacted statutes, all based upon the English Act of 1831. In the study of these the author has spared neither time nor pains, and it has been his ambition to give his subject form and completeness, by working all the material into a book, which he hopes may be of some use in all Courts where English speaking Judges preside. In a sense interpleader is but a small part of the law, which a? a study in comparative jurisprudence has hitherto not received attention from legal writers, with the exception of two or three small handbooks covering English cases only, and a Pennsylvania work of fifty pages dealing with sheriff's interpleader. It is a branch of the law lying across that varying line, which connects rather than separates principles from pleading and practice. Works on equity cover only leadii^ principles, and works on practice the PRKFACE. ^j MthoritiM Of but one or two jumdictioM. Though small, thejsubject hM It. o^ „»« and a growing importance. 'Se proce^g ha. been referred to by the Court, a. «.^! mary, "convenient/' "beneficial," "beneficent," "one of the mo.t valuable form, of judicial procedure known and jo^important that it. appUcation wilfnot be unne::^*"' re™!?v Ct^'^^'J." «°^««^ouring to make the «:ope of the imedy better known, commit, hi. book, imperfect though t be, to the profession, with the hope that it may be usef^ .2? ^ V '"""* "' unnecessary judicial labour, as »ome judges have considered it necessary to write a short treatise in dealing with simple questions, aTd in s^m^ nstances decision, have been given without regard o ZZ ashed rules, and without reference to leading fa es ^t the general principles are the same in most jurisdiction certain side, of the subject have been developed more In one country than in others. A large citation of'the Tthoi" ties seems necessary to exhibit the remedy in all its f eatu^^ alUd " *' "*^* *'^ ««"«™^ *^«P«- o' 4rovemlTs' already in use m some systems, but unknown i^ other* ^h the fact that the Province of Ontario has mor; reported atTTV V"''"*' " P'°P°^^°" *<> populatioTthan eS«l f 1 ^^ "* ""^ °*^*' jurisdiction, must be my excuse for having attempted to produce the first comp"Z hensive treatise on the law of interpleader. ^ Toronto, Canada. ^' ^' ^• 1901. I 111 CONTENTS V, PB.FAO. '^"* Bbitoh Casbs Cited ^ Uirmu States Cases Cmcn xxi BlBLIOGBAPHT . . . .» ^j^ CHAPTBR I. Irtbodvotobt J CHAPTBR II. The Appucart H CHAPTBR III. The Subject Matter T5 CHAPTBR IV. The Claihakts yg CHAPTBR V. The Claui llg CHAPTBR VI. OOOTBIIfE or In DEPEKOEIIT LlABtUTT 147 CHAPTBR VII. The Appucatioh am d Pbooeocbe im CHAPTBR VIII. The Irjvnotion 2M CHAPTBR IX. ]!>uposiTioir or Subject Matteb im CONTENTS, IZ CHAPTBR X It AH iMTXaPLXADEB PBOCXKDMO AW ACTIOW? rjMM. '"'■«"*AD«B A« Amcno CHAPTER XL BT BAinCBCPTCT SrXBMKCS AT IHB TBIAI. Oom ASD CHABOn CHAPTER XII. xni. Afpkau CHAPTER XIV. CHAPTER XV. Aonow nf the Natch, of a Bux or Iicte«.l.ad«b APPENDIX. I»»»w*U)«B Statutm Alphabmicaixt Abbanoco INDEX S4t 267 MS 286 S25 SS8 S46 415 rtr BRITISH CASES CITED. Abbott V. Richards, 152, 199, 223. AdamB T. Blackwell, 49, 67. 64. 74. Adamion t. Adamson. 78. Admitt T. Hands. 269. Adshead t. Grant. 107. Ady T. Harris, 179. ) Agar T. Blethyn, 289. 801. 806. Agnew y. .White, 21. 84. Aldrlch y. Thompson. 286. Aldridge y. Mesner. 286. 300. Alemore y. Adeane, 60. 299. Alexander y. Connell. 49, 162, 164. Alexander t. Handy. 177, 180. 201. 286. 290. Allen T. Brans. 142. Allen y. Gibbon. 96. Allen y. Gllby. 91. 92. Alnete y. Bettam, 24. Ancient Order of Foresters ft Gast- ner. Re, 808. Anderson ft Barber, Re, 166. Anderson y. Galloiray. 91. Anderson y. Carter. 121. Andrew y. Barker. 887. Ancell y. Baddeley. 186. 201, 286. Angell T. Hadden. 2. 11. 09. 119. Angus y. Wootton. 170. Anon (1686). 169. 188. 808. Anon (1848), 164. Anon (1876), 107. Appelby T. Withall, 818, 232. 287. Applegarth t. CoUey. 81. Arayne y. Lloyd, 208. Arkell y. Oliger. 821. Armlt y. Hudson. 88. 288. 289. 801, 802. Armitage y. Foster, 290, 802. 816. Ashdown v. Nash. 282. 296. Attenborough v. London, 67. 108, 148. 160. 162. 288. Attorney-General t. Bank of South Australia, 408. Attorney-General t. Sillem. 326. Attorney-General t. Swan, 408. AustraUan y. Broadbent. 96, 169. 219, 409. Australian t. Ward, 101, 220, 409. Aylwln y. Brans. 194. 211. Baker t. Bank of Australasia. 84, 149. Balkwell y. Beddome. 214, 232. Ball y. Bruen. 290. Bank at Hamilton \. Durrell. 241. Bantock y. Cattley. 296. Barbier. In re. 78. Barclay t. Curtis. 82. 121. Barker y. Dynes. 96. 228, 290. 823. Barker t. Hemming, 248. 822. Barker ▼. Leeson. 833. 386. Barker y. Pettigrew, 164. Barker t. Phipson, 61. Barnes y. Bank ot Bngland, 47. 808. Barrett t. Butler. 46. Bateman y. Farnsworth, 3. 46. 76, 111. Bates, Re. 286. Bauly y. Krook. 829. Baynton y. Hanrey. 168. Beale y. Orerton. 50. Beard y. Knight. 118. Beaty y. Bryee. 821. Beavan y. Dawson. 40. Beeston y. Donaldson. 260. Belbee t. Belbee, 25. Belcher y. Brown. 277, 278. Belcher y. Patten, 278. Belcher y. Smith, 4, 68, 67. Belfast y. Lawther, 80. Bellhouse y. Gunn, 197. 800, 218, 808. Belmont y. Aynard, 108, 808. BRITISH CASES CITED. Beoasech r. B«Mett, 809. Benfleld * StoTena, Re, 82, 109. ^""•y /• Hook. 45, 136. m. 1 Bermlmluun t. Tulte. 26. Benuttconl r. FUrbrother. 40. B«wmt T. Wood. IM. 211. t!5 ^' ^^^' "• **• '0' 160. Bert T. Pembroke. 822. Beewick t. Thomas. 290. 302 i Bevan ▼. Britannia Ina. Co 137 Blgnold T. Andland. 66, 71. M. Binnle t. Henry, 11«. Birch T. Corbln. 207, 219 S^ I- S?^\"^' 2«». 270, 384. Bird T. Holt, 108. fUSnl •^^•'"' "«• 1>3' 282. 263. Biabop v. Hlnzman, 126, 143 ms Bkusk V. Droulllard. 117. 274 ^,iJ' *«y»olda. 228, 229. fjwkbum v. Wagner, 107. IBlackmore t. Yates, 271. J Blair T. Blair, Z2. I '***804."*'^'°'*' "'• ^"' 2"' 803 fei^fJ^Seager. 301. 319. iS. ^ ▼• Delano, 297, 316. IS. ** ^' **▼•«. 400. Blenno-hassett v. Scanlan, 143 floor V. Huston, 899. ' 2'T*?*^- Whiffln. 889. 340. Bolster t. Walker, 178. I Bolt V. Stanaway, 40. ir — - ▼• Bolton. 82. I2»?i*'' ^Saaaoon, 71. 814. 364. I Bond v. Woodhall. 66. iBooth ▼. Bgu. 248. I 298.**^***°' **' '^' "'• "'• *•*• iBosanqaet ▼. Woodford. 269. 270. iBoawell r. Pettlgrew. 49. 63. Ib^Z^^I ^i*""?' "7. 290. 802. IBowen T. Bramldie. 196, 808. In T* ▼. Pritchard. 148. Is'*5i?1?"'' '• I*«rle. 200. iSS^ii^" ▼Smith. 69, 121. 313. ■£!?«•' ^ Junes. 104. IBramldge t. Adshead. 176. ■Bramsden v. Parker. 294. grand t. Blokle. 260. 868 ■Breithaupt v. Marr. 188 BHH *• *"»>>l«t«r, 148. Brtll V. Grand Trunk Ry., 68. Brown r. Britannia. 119. XI 78. I Brown T. Ludham. 178. 230 I Brown T. Nelson, 77, 190. ^^80l' '*"'*■*• ^ PnlTla. 294. Brown T, Ruttan. 234. Bruce V. Blwln. 241. Brunswick Balke Co.. Re. 90. Bryant t. Ikey. 290. 302. Bryant t. Reading. 172. 329. 880. ^^«J; Klnnee. 46. 116, 177. 179 269. 274. 278. ' Brymer t. Buchanan, 190. Bryson v. Clandlnan. 191 Buchanan v. Campbell. 810. Buck V. Robson. 148. Buffalo V. Hemmlngway, 218. Burgh V. Schofleld, 192, 824. Burke v. Burke, 128, 802. Burke v. D'Arcy. 290. Burke ▼. Rutledge. 104. 138. Burnett v. Anderson. 92. Bumham v. Walton. 97. 306 Bums. Re. Bums v. Brown 259 aaa Burns v. Dalsell. 289. ' ' ^''• Bums V. steel. 260. Busfleld. In re. 109. 205. But er V. . 76. 164. Butlw V. Lloyd. 208. C. V. D.. 127. 292. Calder v. McLay, 262. Campbell y. . 39. Campbell ▼. Conway, 168. Campbell t. Etolomans, 286. Campbell v. Sweeny, 290. ^"""^MO^*™"*"' ▼. Forest, 190, "^•^a^'ce^j: *" ^-»«-« - CanadUn v. Daniels, 186. Canadian v. Forsyth, 811. Canadian t. Mlddleton, 308. Canadian t. Tasker. 127, 168, 292. Canadian Paciflc 4b Carruthers. Re 10, 161, Candy y. Maugham, 102. Carew ▼. Hanly. 882. Carmlohael v. Todd. 118. Carne v. Brice. 269. 277. Caron v. Oraham. 398, 402. Carpenter y. Pierce. 218. Carr t. Bdwards. 806. 1 If'ii! ill ' M xn BRITISH CASES CITEO. Caracaden t. Zimmerman, 170. Carter v. Sternberg, 172, 40». Carter v. Stewart,, 294, 302. Catberall v. Davles, 160. Castlemaine v. Howell, 265. Central Bank t. Hodgson. 106. Cette T. Bartlett, 288. Cbalon t. Anderson, 91. Cbase t. Ooble, 279. Cbild T. Mann. 41. 259. 291. Cbisfaolm T. Ricbardson. 811. Cbristie t. Conway. 321. Cburcbwarden t. Coleman, 396, 398. Clancy v. Young. 20, 186. 832, 336. Clarldge t. Collins, 106. Clark T. Byne. 25, 122. Clark v. Campbell. 119, 310. Clark T. Cbetwode, 315. 317. Clarke v. Farrell (1880). 114. Clark J V. Farrell (1881), 113, 114. Clarke v. Lord, 100. Ill, 146, 299. Cleaver t. Fisber, 201. CleT« B. ft A. C. Bank v 0111 he S?f;°'ThanetT.Paterson.l9 ^ T. Campion. I88. ^Mt T. Edwards. 122 Bast V. Llttledale. 66. 131 159 «, Edensor v. Roberti. 286. 300 SU^ Edwards y. Edwards. 108. "' Edwards v. English. 279 Edwards V. Matthews. 271. 276. 286. Elliott T. Sparrow, 196, 324 S^?^„«;«««S^.i"- J^rrow y. Tobln, 402. fj" V. O^ell. 108. 810. **fsltt. Re, 266. vlr^^ ^- ^ycock. 106. wi^J ▼• Cleghom, 277. J^e d y. Hart, 278. Field J. Rlvlngton, 192. 804. 329. 880. Flnlayson y. Howard, 402. Fshery. calyert, 148. fSfTj;- Brock, 262, 286. pS?y J' S°**"«y' «. 64. 181. 298. Follows, In re. 286. Ford. Ex. p., 201. 236. Ford y. Dllly, 167. Forster y. dowser. 224. 226. ZIT BRITISH CASKS CITEO. IVwth T. Slmpwii, 148. boater T. Pritduurd. 40S. Toalwm T. Tajrlor, 113. Fox T. Symlncton, 402. Fraaw T. Wallace, 18,082. Fnehold Loan t. Bnrwn. 166, 178. rntfauM T. Moontcaahel, 48, 61, 142. 1^ T. Heywood. 16, 162, 809. ■ Froat T. haair, 82L rn V. WatMn. 68, 22L FaU«r T. Olbabn. 189. Fuller T. Pattenon, 46, 61, 122. TvaUmg r. Rdd. 284. Oadeaden v. Barrow. 279. Gac* T. ColUna. 886, 401. Ctalt T. McLean, 178. Owdlner t. Hlnda, 78. Gaakell t. Sefton, 818, 819. Oajnmr t. Salt, 146, 216, 218. Oay T. Plttman. 80. Gaytoa t. Bepin. 286.^ Oeikle T. Morrla, 116. Gerhard t. Montacue, 84, 174. Qethin t. Wllkee. 167. Olbbe ▼. Olbtw (1867), 66. Oibtia T. Olbbe (1858), 84. 820. OUboolr ▼. Gooi^, 174, 290. GUI T. Fatriek, 106. Gill T. Senwe. 86. Glllard T. BoUert. 284. Ollleeple r. Robwtson. 288. 289, 801. Glrran t. Lamond, 77. Ollllntfiain t. Stuart, 824. Gladstone t. MeDonell, 196. Gladatone t. White, 66, 288. Olasier t. Cooke, 127, 292. 2M. Glaaa r. Robertaoo. 119. Glover V. Reynolds, 66. Glyn T. Dueebury. 11. 82. 88. Glynn t. Locke. 122, 124, 140, 286, 287. Goldsehmidt t. Hamlet. 240. 269. Goodlock T. Ckiuaina. 226, 280. Uoodman ▼. Blake, 819. Goodriok T. Shotbolt, 840. (ioelln T. Tune, 94. Ctould T. Hope, In re, 44, 106, 166, 886. Oourlay t. Ingram, 104, 169, 884. Gourlay t. Undiay, 121. Graham t. Graham, 146. Grant t. Fry, 80. Grant t. Grant, ill, SIS. Grant t. McKay. 106. 176. Grant ▼. Wilaon. 274, 276, 279. Gray t. Alexander, 196, 800, 810, 812. Gray ▼. Fortune, tU. Chranbrook t. Flcktord, SM. Greatorez t. Sbadde. 8Sl Great North, etc., Ky. ▼. Gauld, 118. Great Sonthwn t Corry, 66. Green t. Brown. 119. Green t. Rogen. 276. 277. Green t. 8t«T«w. 274. Cbwene t. Letterkenny. 242. Gregory t. Slowman. 197. Greeham t. Kavanai^. 810. Grothe t. Pearce. 198. 821 Gugm T. Sampson. 270. Gumm T. TyHe, 881. 881 Guy T. Ambrose, STL Hackett t. Bible, 128, 196, 216. 287, 261. Hackett t. Webb, 87. Haddow ▼. Morton, 60. 121. 286. Hale T. Salocm. 41, 294. HaU. Bz p.. 141 Hall T. Bowerman. 78. 94. 296. HaD T. Klssock. ISO. HaU ▼. Macdonald, 81 HaUlng. Bx p.. In re Haydon. 262. 268. Hamlyn v. Bett«!ey, 187. 248. Hamilton ▼. Bovalrd. 88. Hamilton t. Campbell. 78. Hamilton t. Marks. 47. HammiU t. De Wolf. 178. 271 Hammond t. NaTln. 86. 296. 802. Handoock t. Shaen. 24. 121 Huwen t. Maddox. 289. 806, 888. Hariow T. Crowley, 81 266. Banner t. Cowan, 818. Harmer t. Goulnlock, 211 Harris ▼. Bank of B. N. A., 110, 206. Harris t. Solomon, 266. HmtIs v. York, 49, 68, 64. Harrison, In re, 262, 811 Harrison t. Forster, 6. 44. 67. Harrison v. Pi^me, 187. Harrison t. Wright, 171. Hartley t. Shemwell. 822. Hartley t. Swayne, 66. Hartmont t. Foster, 880, 832. Harwood v. Betham. 144. Haythorn t. Bush. HI. Haslty V. McArthur, 179. Heatheote t. Livesley, 226, 264. Heathley t. WUlard, 821 Hedley ▼. Bates, 211. Henderson t. Watson, 18. 91. Hendorson t. Wilde. 801 HsBdry T. Key, 296, MO. MITISH CASES CITED, s^ :• J?**?'"- «•' «". »». H«bwii T Rex, M7. »"• T. Renny, 402. SJSS" ,"«"• "• *«• «»• "3- Hockey v. Brans, 169, 224. HolUo- T. Laurie. 162. 199. Holt T. Froat, 4, 46. 69. Holt T. Kelly, 177. u^* ▼• Onntrip, 04, 94. [ S*"®" ▼• Ind. Coope ft Co.. 199 tl7 Hornw T. WUcocka. 61. ' ' ^'• Hmnldge v. Cooper, 284, Hmrtmi t. Barl of DeTon, 160. I Ho«i3i T. Doll. 186. Ho^ea T, Little. 249. 326. 886. Hntfaea t. Smallwood. m. Hunter T. Hunter. 262, 327. 2l!!!^ ▼•y»nrtone, 408. Hurat T. Sheldon, 12L Httrtaau T. Roas, 161. Hyde T. Warren, 219. Hyland t. Lennox, 802. Hmj° '• ^•'"'' 206. ibtotaoa t. Chandler, 48. 100. f»*"» ▼• WUkw. 76 82. Inland t. Buahell, 91, 92. *■"«▼• Spltobury, 46, 186. Jleblater t. SulUran. 166, 826, 886. iJaoobaon ▼. Blackhulat, 66: IJunea t. Pritdiard, 160. IJamea ▼. RIoknell, 128, 216, 26L Jualeaott t. Robertaon 87. H'^T, ""■ ^Jtt»'«"». 824. \j!^^ Jl!^^^^ 8, 169, IJen(9 T. Crawley, 408. XT Jew v. Wood, 26, 219., 22L Johnaon v. Baldwin, 166, Johnaon v. McDonald, 200. Johnaon v. Shaw, 1601 .obTiaton t. Atklnaon. 24 84 Joiiffe v. OilbwtTX ' *• **• Jonea ▼. Ollham, 824. Jonea v. Harrla. 836. Jonea y. Jenklna, 284. Jonea v. Lewia, 802. Jonea v. Regan. 289. 301, 805 Jonea v. Thomaa, li. 28! Jonea v. Turnbull, 266. K««»e T. Croaler, 108. K2t?i* J" ^"»°' 825. 400. Kebel y. Phiipot, 192, 198. 3ll' ^**^^^°°^' 180. 182, 314, Kennedy v, Laran, 164, 224. Kennedy t, Patteraon, 216. 217 Kerr y. PuUarton. 38. ' "^• S!?li?1"'^ ▼• OUllam, 299. 827 401. SS^."'5i;k!'?5--' "»• »^i- f}"« ▼• 5rt<»«w. 40: Ajn* T, Duncan, 242. Mi.^'""**""** ^"«>' 8". 8M. Kirk y, Alnumd, 91. Kirk T. Clark. U6. Knlekerbocker y. Webatw, 810. Kotehle y. Golden 8oyerrt£J, 138. Kyd y. Wateraon, 32, 81^^ itSrJiS!?'""*' 180. 148. t'LIl ^*^«". 837. ** OoBtPMlne General, etc Ra. J2««T. Zeden. 8, 286, 'sS!'' ^ J*a»pert y. Cooper, 289, i*n«rton y. Boylaton. 11. 36. 67. 60. ss;'>5s5sr'4^66*'''»^*- J^fUn y. Graham, 180, 334. Uahman y. Clarln«bold. SO. l^WBon y. Carter. 114, 228. 295 l*nru» y. Hhrrta. 167l4» L* y. Roaal. 88. 84. ' J^ch ^- WlUlamaon. 144. 181. {2«MiT. Lamoa. 187. 189. 88L f^eyaaaenr y. llaaon. 48 lai ia• 10«. 810, Northcote y. Bwtuehamp, 178. 269 xfH vSI- !^^ ^"^ <*• ▼• Hop*. 224 O Brien y. Brodle, 263. ucallaghan y. Cowan. 216 m *»• Ogden y. Craig. h1». ' ^' "*• Ogllyy y. Cheyaller. 32. O llphant y. Leslie. 393, 402. O Nejj V. Farr, 179. O-Nell y. CNeU. 68. Ontario y. Hobbs. in. Ontario y. Merchants. 282. ?^^° ^- «•▼«". 237, 316. Ontario y. Tasker. 296. 328. Onyon y. Washbonme. 40. wm y. Sheldon. 290. 802. Oriental y. Nicholson. 17 wler y. Bower. 67, 69. Oyena y. Bull. 107. 183. 279. wta ▼. Ollham, 36. 86. P»rls y. Walls. 92. niiente y. Pennell, 169. ' wk y. Taylor, 218. ^k ▼. Watw)a, 119. PWker y. Booth. 178. 269. wkw- y. Llnnett. 288, 30L P»rnell y. Stedman. 83L wsons y. Lloyd. 268. Patw^n y. I*ngley. 183. Paterson y. Paterson. 22. PMoml y. Campbell. 16. 108. 149 Patterson y. Kennedy.. 292/316; Panll y. Von Melle. 212. rearce y. Armstrong. 203. Pearce y. Watklns. 224. Fearson y. Cardon. 9. 30. p!^^7- ^^^ 187. 290. 302. Peruvian y. Bockwoldt, 206. g^S»f;PW»>bs,290.304 Ph by y. Ikey. 1O6, 298. ™}ljP« V. Armstrong. 170. PWUlps y. Spry. 164. ' PhlPPS y. Beamer, 320. Sf*K ° ^' Victoria. 34. m^^ J- S^^S'' **8. 289. 301. naxton y. Monkman. 18» i«u •,»» Pb«« v. Capel, m ' "*' ^**- SSSStt;i^'*'"*'278.807. nnnkett y. Kearnry. 167. 318. • •• 2V1U BBITUH CASSB CrtED. Foluid T. Co«U. 160. Pollard T. Ctelloway, 21. it. 138. 287. Pooimy T. Goodwin. 181, M9. Pow«U T. Lock. 168. Powell T. SoniMt. 837. Power T. Flflmlnc 216, 218. Prtoe T. Plmniner. 102, 179, 191. 198. ProMer t. Malliiwon, 127, 292, 803. Pmdentlal Ahoo. Co. t. Thomas. 149. 209. PurklM T. Holland, 105, 227. 230. 259. Putnejr t. Trlns. 121. Qneen t. Richards. 395. Qneen t. Stapylton. 396, 398. Qolnton ▼. Bntt. 48. 146. Radenhnnt t. McLean. 216. Rae T. Oarbott, 179. RanuMtr T. Margrett. 331. Ramiden t. Cionry. 60. 91. Randall t. Ldthgow. S3. 186. Reading ▼. London School Board. 78, 148. 168, 210, 219. Reevea t. Barraod. 288. 289. SOL Regan r. Jonee. 289. 301. 305. Regan t. Serle, 84. Reglna t. Doty. 325. 894. 400. Rdd T. Oowans. 24t. Rdd T. McDonald. 393, S96. Rttd T. Murphy. 196. 218. 226. 237. 816, 819. Reld T. Steam, Vfi. Rex T. Sheriff of Hortfordshlre, 45, 20L Rhodes ▼. Dawwn. 808. Rich T. Aldred, 6. Rldiarda t. Jenkins. 224. 271. 276. 277, 279, 280, 28L Richards t. Johnstoi\, 280. Richardson t. Shaw, 882, 886. Richardson y. Wright, 396, 397. Richard t. Hyde, 25. Rldgway T. Fisher, 50. Rldgway T. Jones, 309, 811. Rlwdan t. Poison, 807. Rlpsteln T. BriUsh Canadian, 271, 272. Roach T. McLachlan, 183. Roach T. Wright, 46, 12L Robb T. Rohb, 21. Robwty, Re, 829, 330. Roberts t. Asken. 66. Roberts y. Bell, 79. Roberts, Re, Byans y. Thomas. 167. Roblss<»i ^. Jenkins. 77. 86. 152. Robinson y. Richardson. 198. Robinson y. Tucker, 842, 829. 880, 88L V ^^ RobUn y. Moodle. 210. Rogers y. Commercial Union Asa. Co.. 74. Rogers y. Kennay. 276. Rondot y. Monetary Times, 178, 286, SSL Roods y. Oon Shot. etc.. Ca. SOL 802. Ross y. Edwards (1893). 204. Ross y. Edwards (1894). 180. 197, 204. 226. Ross y. Haenel, 40L Rowland y. Powell, 26. 111. 138. Royal Bank y. Price. 22. 86. 119. Royal Bank y. Steyenson. 138. Rosden y. P«ett. 329, 331. " Turner y. Crotler. 228. 823. Turaer y. Kendal. 61. 'iso. 400" "^"^ ®"*' '" ". W6. Tyson y. WllUs, 324. Underden y. Burgess, 814, 317, Underfeed Stoker Co., Re, 77, 110, 151. Union Bank y. Tlszard, 178, 279. UiUon Bank y. Tuttle, 108. Usher y. Martin. 278. Vallance y, Nalah. 336. 401, v!^ tS.^" ^- A»hworth. 108. Van Byery y. Ro,., i82. 184. XT BBinSH CASKS CITED. VMUbUtoa T. VaaatadMi. U7. 1C9. MS. Ml Vardon, R«. SS6. VlauT T. Wldf«r, tt». Victor T. Croppar. 171 04. Victor aUiiM T. British. 61 Victoria V. Betbooe. U. 47, 84. Vldal T. Bulk of Uppw Cauda. BU. Vindln T. Wallls. 77, 181 Visard T. OiU, 184. Vyryaa v. Vjrryan, 26. 61 Walt T. 8a«er. S4L Walbanka t. Sitarks. S8. 281. WaldroB. Bz p., 881. 887. Walker t. Fletcher, 64. Walker t. Ker, 78, 116. Walker t. NUes, 126. Walker t. Oldinc, 218. Walker t. WlUiams, 178. Wallbridse r. Hall, 188. 116. 216. Wallls. Re. 265. Walter r. Nlchoteon. 44. 76. 81 Warington t. Wheatstone. 62. 219. 220. Wamock t. I'Ult, 44, 80, 106, HI. Washington y Webb, 401. Waterhouse t. BknT. 167. Waterhonse v. Oilbert, 328, 880. Waterton t. Baker. 269, 284. WatsoB T. Henderson, 91. Watts T. Hamnwnd, 29, 122. Watts T. Howell, 101. 891 Webb T. Mmw, 829. Webster t. Delafleld. 170, 810. Webster. Ex p.. In re Morris, 299, 327. Wells V. Olassock. 81 Writs T. Hews. 43, 166, 266, 286, 800. Wemyss ▼. CampbeU, 188. West T. Rotherham, 290. Westerman t. Rees. 880. Western Canada y. Court, 26. Wheeler ▼. Hnrphy, 64, 92. White T. Binstead, 111 White T. Milne. 886. 40L White T. Spottiswoode. 188. White T. Watts. 1904 246. , Whitehead t. Procter. J91 Whiting T. Horey. 181 WhltUer t. Whlttier. 61 Wicks T. Wood. 801. WUooxon T. Searby. 886. 400. Wilkinson t. Harrey. 211 Wilktns T. Peatman. 61. 126. 161 803. Williams T. Crossllng. 810. Williams T. Carter. 408. Williams T. Gray, 240. Williams T. Mstthews. 67. Williams T. Mereler. 826.>881 Williams T. Richardson. 211 Wllllamscm ▼. Bank ot Montreal. 60. 96. Wills T.' Hopkins, 802. 808. Wills V. Popjoy. 67. Wilson T. BnU. 17L Wilson T. Dewar, 189. Wilson y. Kerr, 144. 245. 331. Wilson y. Wilson. 185. 248. 2f7. 884, 8S8> Wlngfleld y. Fowlie. 178. Winchester y. BUkey, 21. 87, 137. Wlntw y. Bartholomew, 161 199. Withers y. Parker. 246, 826, SSL Witt y. Parker. 881. Wolff y. Black, 97, Wollaston y. Wrif^t. 24, 84. Wood y. Lyne, 66. Woodford y. Bosanquet. 182. Woollen y. Wright. 216. Wm-kmelster y. Healy. 810. Wrlgley y. Bergln. 49. 61. Wright y. Freeman, 82. Wright y. Redgraye, 212, 228. 887. Wright y. Ward, 21 Wrizon y. Pureell. 49. Tates y. Farebrother. 81. Tates y. Meehan, 814. Yorke y. Smith. 177. UNITED STATES CASES CITED. Adams T. BMCb (P».), 26. AduBS T. Dixon (CkL). li. tJ. S6S. Adranee T. Miller (Pfc), 7». .«tii« T. United SUtee (N.T.). U. Ak«». In re (Hawaii). 861. Aland t. Btok (Pa.), in. I AlllT'm T. BIberaon (Pa.). 87. American t. Day (N.Y.), 88. Ammendale t. Anderaon M. 78, 87. Andenon y. Tjmdale (Pa.). 88L • Arn T. Am (Ma). 87. 848. Atalanta t. MeDanlel (Cta.). 88. Atklnatm t. Flannifan (Mleh.). 67. AUlnwB T M«^ (N.T.), u. i«o. .^^. ***> »•«. M7. 878. AtUnaon t. McNanghton (Pa.). 231 AuerlMUJk t. Sartorioua (ftL) sS (N^i.).^**"- *^' CO- Badean^.. Rogers (N.Y.). 2. 12. 286. Badean t. Tylee (N.T.), 26. B^ley T. Vehmelei (Pa. .MO ^«r T. Brown (N.Y.). 29. iwicben t. Crawford (N.Y) ISfi ^ „ 160. 188. 286. ^ ^''' ^'"'' Ba^lou T. one (Wis.). 282. Balttowe T. Arthur (N.Y.). 72. 128. ^k T. Emerson (Pa.), 294. ^k V. Sharp (Pa.). 230 Barker t. Swain (N.C.). I86. Am' ican t. Thalelmer (N.Y.). 120. Barnes t. Bamberger TPa.). 86, 89. Barrett V. Gross (Pa.), 281. BarroU v. Foreman (Md.), 89. Barry V Bqnitable Ufe (N.Y.), no, zos. Barry T. Mutual Life (N.Y.), 4. 19. Barth T. Rosenfeld (Md.). 246, 827. BarUev: t. Lonndes (W. Va.), 191 Bartlett r. The Sultan (N.Y.), 122. Baswrtt T. Leslie (N.Y.). 88. 186. Battemby ▼. Haubert (I a.). 284. B^es T. Sliney (Pa.), 276. Baxter r. Day (Wis.), 83, 412. Bechtel T. Sheafer (ftu), 34. 166. Becher ▼. Miller (Pa.). 230. 7i ^5J?* ^''•^•>' 2. 11. 17. io» 19, 879. Bedell v. Hoffman (N.Y.). 12. 26. 71. 297, 840. 379. Beers t. Spooner (Vs.). 29. 410. Brfir V. Oerson (Ala.). 6. Bell V. Ounn ((Ja.). 106. Bell T. Hunt (N.Y.). 84. 107. Belllngham v. Brlsbols (Wash.). 212 Belmont v. Norrls (Pa.), 810. Bender v. Sherwood (N.Y.), 212. Berger t. Jnergen (Pa.), 171. B«mhart t. Mitchell (Pa.), 187. Bernstein v. Hamilton (N.Y.). 71 72 Bettman t. Hunt (Ohio). 266. Biggs T. Kouns (Ken.), 68, 88. 213. 367. Bird V, Neff (Pa.), 69. Blxby V. Blair (Iowa), 866. Blair T. Porter (N.Y.), 18, I81, 879. XXll UWITED STATES CASES CITED. i! Blake ▼. Garwood (NJ.), 186. Sleeker v. Qraham (N.Y.). 11. 81, 75. BUM V. French (Mleb.), 66. 212. Blommlngdale t. Victor (Pa.). 277. Blue T. Wataon (111m.), 27, 62. 68, 212. 889. Blum T. Wamw (Pa.). 271. 276. Board t. ScovlUe (Kan.). 18. 841. Bornstein t. Jaoobe (Pa.), 283. Boston T. SklUlaci (Maaa.), 122, 378. Bowery v. New York (N.Y.), 136. Boyer t. HanUlton (Mo.), 876. Boyle T. Manlon (MIm.), 82. Bracken v. OravM (N.Y.). 68. 118. Brenlier ▼. CahlU (Pa.). 239. Brennan v. Uverpool (N.Y.). 47. 66. Brlant y. Reld (N.J.), 34, 128. 138. 186. BrldMburcli Mfg. Ck).'a Appeal (Pa.), 64. 68. 839, 348. Bridge t. Martin (Ohio). 6. Brlerly v. BqulUble (MaH.). 122. Brill T. Weat (Pa.). 146. Brock ▼. Southern Ry. (aC), 18. 30. 120. 166. Brooke v. Smith (Pa.), 62, 84. Brooke v. Hoffman (Pa.). 231. Brownfleld v. Canon (Pa.). 408. r -own V. Bacon (Mies.). 11. Brown v. Campbell (Cal.), 72. Brown v. WUaon (Qa.), 46. Browning t. HUlg (Mo.). 37. 64. Browning y. Watklna (Mbn.). 11, 72, 118, 148, 164. Bruggemann y. Bank (N.Y.), 36. Bryne y. Hayden (Pa.). 240. Bueehley y. Walker (Pa.), 170, 230. Buffalo y. Alberger (N.Y.), 62. Buffalo y. Mackay (N.Y.), 842. Burhop y. Milwaukee (Wis.), 164. Burk y. Wallace (Pa.), 169. Bums y. Toner (Pa.), 201. Burrltt y. Preas (N.Y.), 4. 68, 80, 181, 133. 134. Burton y. Black (Fla.), 11, 81, 121, BuMe y. VoBS (Ohio), 88. Butler y. Atlantic (N.Y.), 102, 184. Cady y. Potter (N.Y.). 86. 76. 166. Cahoon y. Leyy (Cal.), 118. Campbell y. Cleywtlne (Pa.), 274, o04. Campbell y. WaHerman (Pa.), 276, 286. Canfleld y. Morgan (N.Y.). 286. 800. Cannon v. Kinney (MIm.), 28. Capitol y. Consolidated (Pa.), iiB. Carrlco y. Tomllnson (Ma), 88. ^rroll y. Demarest (N.Y.)> 72, 148. **rtwrlght y. Hoffnihtg (Hawaii), 363. CMtner y. Twltehell (Me.), 87. 68, 266. Cayen y. Cole (Pa.). 239. Chamberlain y. Almy (N.Y ) 84 Chamberlain y. O'Connor (NY ■»' 78 Chandler y. Zlegler (KI;). 2M:^' '*" Cheeyer y. Hodgson (Ma). 47. Cherry y. Nolan (Pa.), 231. Chesapeake y. Paine (Va.), 11, 410. Christian y. National (Ma). 287 ChurchiU y. Welsh (Wis.). '48, 297, City Ouic y. Skelton (N.Y.), 86, 166. ZvT* city y. Hltner (Pa.), 230. Clark y. Mosher (N.Y.), 36, 286. Cleaver y. Blaker (Pa.), 304. Clinton y. First National Bank (Wis.). 07. Clymer y. Shaw (Pa.), 230. Cogswell y. Armstrong (in.), 11, 68, 74, 864. Coleman y^^Chambers (Ala.), 16, 60. Collins V. Angell (Cal), 32. Commercial y. Newman (111.), u. loo, 338. Commith y. Chapman (Pa.), 233. Commonwealth y. Megee (Pa.). 200. Commonwealth v. Sides (Pa.). 816. Commonwealth y. Walter (Pa.). 289. Condict y. King (N.J.), 161. Conklfn y. Sayers (Pa.), 276. Conley y. Alabama (Ala^ j. C°nley V. Gartner (Pa.,, a29, 233. Cooowsticut V. Lea (Ohio). 129. 130, Conner y. Webber (N.Y.), 136. Consociated v. SUples (Conn.). 62 91. 287. 848. 349. ' Cooper V. Jones (Ga.), 48. 327. Cosgrllfy. Hudson (N.Y.). 129. 181, 132» 133. Coiad T. Shannon (Ohio). 48. ^'^'Vi.S?*'"^'* (N.Y.). 11. U6. ^^'^j^Mw'PW* (Ata.), 69. ue. ^mwell T. Amwlaw (N.Y.). «i Crordn v. CronJn (N.Y.). 17, 18. 306. Crabr V. Muon (Conn.), 341. CroM T. Armstrons (Ohio). 77 SOR. Curtl. v.'wuiUm. (111.). 340. Danaher t. Prentlat (Wto.). 38. DjJlet T.Bond (Pa.). 330. ' Dw^ww T. Barm (Ata.), 34L wrow T. Admni (Conn.), 309. DaTl. ▼. Benedict (N.Y.), k , Davla T. Fouche (ftt). 340. De Uncy v. Murphy (N.Y.). 16. 136. Delewnre v. Corwlth (N.Y.). 83. Sph.^'S.5S^^>.pJ!;«t«~. i°"'''-frv.):85."**'^ ^ Dlnley v. McCaltagh (N.Y.), 286. Wllon v. Conover (Pn.). 224. Mtmnn ▼. Raulo (Pa.). 214. Dixon V. NaUonal Ufe (Han.) 122 Dojne V. Spanogle (Pa.), m.' ^'' Dodd V. Bellowa (N.J.). 24. 84. 378." °"*°'^ <"'"•)• ". «3. DohnerfB Appeal (Pa.). 340. 843. Dorn V. Fox (N.Y.), 27. 126. 342 Drake v. Woodford (N.Y.). 33 Dreyer v. Ranch (N. Y ) 84 «k SrSfcJ- ^^ (N-^) '130: 3"o. Dry Dock t. Carr (N.Y.). 12, 186. Du Bol. V. Union (N.Y.)'. 17. lINs. Dunn V. Campbell (N.J.). 27. EbblnghauB v. KllUan (D.C.), 339 Eberly v. Aultman (Pa.). 304 Emerlck v. New York Llfe(Md) 86. 61. 63. 129. ^ '' Emeraon v. OratUn (Pa.). 281 K^'S '• "'"«'' Ml2.). 876. Evans y. Bvani (Pa.). 834. Evana v. Matlack (Pa.). 12 iCr.K \ """Jwy (Or.). 34. 403. Fairbanks r. Belknap (Maflfl.). 2. 11 *l. 73, 86. 121. 122. 166, 261. UNITED 8TATKS CASES CITEa xxm Farp T. Arthur (N.Y.), 80. I'^ley T. Blood. (N.H.). 11 78 90 W. 300. 378. • "• ••• Faulkner t. Votaht (Pa.) ssa Feldnutn r. OraiTd N.Vo '3rM. 131 Ferguson y. Bhrenrerc (Ark.S «« neld y. OanUer (Tex.). 408. «nlay y. American (N.Y.), 76. First NaUonal y. Beebe (Ohio). 19, "^ 1^"°°*' '■ ""•»«" INJ.). FIrit NtUoaal t. West RlY«f im \ Ftorest Riyer y. Salem (Mass.) M2. Vuy ▼. Bast Dallas rTsv ) aas "^V- «""N*«oii%^.), IJeda ▼. Montauk (N.Y ) ac Preeland y. Wilson (Mo.) I9 1,0 French y. Howard (Ken )''i?6 51?" French v. Robrchard (Vt ) 4« i^i Prledman y. PUtt (N.Y .29 Pulton V. Chase (N.Y ) 82 OMiti y. Mccracken (i.) 80 1S6 Owdlner y. Emerson (Me ) 89 «• ^ . 207, 300, 301V867. '^' '"' '"' Garrison y. Settle (Pa.), 231 Oaynor^ y. Blewett (Vis." 339. 340. a«ner V. PuchU (Ohio), 384. 01bson^y.^g,,jj,„!,Ji.1,»V O Ham V. Tobias (Pa.), 284. O lmor« y. Deylln {D.C). 60, 24L O aser y. Priest (Mo.). 287 Olasner y. Welsber. (Mo.), 287. ZXIV UNITED STATES CASES CITED. OUunner t. Welsberg (Mo.), 72, 169. Ooddard v. Leech (Ohio), 161, 383. Ctoddard v. Well (Pa.), 187. Golden v. MetropollUn (N.Y.), 133, 140. Good V. BrlggB (Pa.), 37, 49. Goodrich v. Wllliamaon (Okl.), 385. Orabau t. Hlrehfleld (Pa.), 231. Grant v. Hancock (Pa.), 201. Grant v. Hill (Pa.), 191, 277. 285. Gray t. Krugerman (Pa.), 242. Greene v. Mumford (R.I.), 27, 66. Gregg. Re, Fee v. Wolfe (Mo.). 37, 266, 288. Orrtl V. Globe (N.Y.), 71. Grlgga V. Thompson (Ga.), 47. Grover v. Wolfe (Pa.), 306. Groves v. Sentell (La.), 64, 68, i!39. Hagan t. Lucas (Ala.), 234. Hahs V. Schmeyer (Pa^), 231. Halberstadt v. Progressive (Pa.), 146. Hall V. Baldwin (N.J.), 341. Hall v. Craig (N.J.), 24. Hall T. Vanderpool (Pa.), 42. Hallowell v. Schnitzer (Pa.), 224. Hamilton ▼. Hitner (Pa.), 33. Hancock v. Lawder (R.I.), 280. Harbison t. GiUeland (Pa.), 306. Hardy v. Hunt (Cal.), 83. Hardy v. Yarmouth (Mass.), 342. Harrisburgh v. Heister (Pa.), 35. Hartford t. Cummings (Neb.), 2. 86, 71, 72, 377. Hartley v. Weldeman (Pa.), 272. Hartman v. Scholfleld (Pa.), 280. Haseltine v. Brickey (Va.), 47, 410. Hastings V. Cropper (Del.), 2, 33. 98, 100, 164, 208, 349. Hatfield T. McWhorter (Ga.), 13, 60. Hathaway v. Foy (Mo.), 12, 376. Haubert t. Beckhaus (Pa.), 303, 304. Hayden v. Saddlery (Ohio), 96. Hayes t. Johnston (Ala.), 11, 346. Haywood v. Ashman (Pa.), 280. Heald v. Rhind (Md.), 160, 246, 827. Heath v. Hurless (111.), 839. Hechmer v. GiUlgan (W. Va.), 88, 411. Heere v. Penn Notional Bank (Pa.), Hellman t. Schneider (111.), 72. Henderson v. Gairrett (Miss.), 88, 197. Henderson v. Richardson (Ala.), 4L Hess V. Bank (Pa.), 805. Heymen v. Smadbeck (N.Y.), 88. Hildebrand v. Smith (Pa.). 234. Hill v. Robinson (Pa4, 23*. Hill V. Grant (Pa.). 214, Hilton v. St Louis (Mo.). 842. Hinckley v. Pfister (Wis.). 338, 339. Hines V. Spruill (N. Car.), 106, 138. Hodges v. Griggs (Vt). 339. Hoemer v. Pine Grove Brewing Ca (Pa.). 307. Hotrman y. McBrldn (Pa.). 404. Hol!J!i>s,er v. Lefr r- ''onn.), 13. Holmes v. Clark . 164, 409. Home Ufe v. Caulk (Md.), 46, 68, 66, 89. 159. Hooper v. Balch (Minn.). 374. Hornby v. Gordon (N.Y.), 16, 123. Horton v. Baptist Church (Vt.), 161 196, 268. Horton v. Grant (Miss.), 88, 376. Horton v. McCurdy (Pa.), 276. Houghton T. Kendall (Mass.), 64. Houghton V. Moyer (Pa.), 188. Howe V. Gittord (N.Y.), 16, 34, 156. Howell V. Roberts (Pa.), 407. Howland v. Lounds (N.Y.), 80. Hyman v. Cameron (Miss.), 11. 71. Iglehart v. Moore (Tex.), 33. Illingworth v. Rowe (N.J.), 339, 340, 341. Independent v. Mardis (Iowa), 38. Ireland v. Ireland (N.Y.). 282. Jackson v. Jackson (Ala.), 64. Jackson v. Knickerbocker (N.Y.), 72 Jacobs v. Wells (Pa.), 231. James t. Sams (Ga.). 77, 106, 266. Janney ▼. Howard (Pa.), 280. Jarrard v. Zook (Pa.), 308. Janris v. Benedict (N.Y.), 28. John Hancock, etc., Co. t. Ladvder (R.I.). 280. Johnston V. Lewis (N.Y.), 86. Johnston t. Mazey (Ala.), 238. Johnston t. Miner (Pa.), 234. Johnston v. OliTer (Ohio), 46, 49, 72. 81, 88. Johnston t. Stimmel (N.Y.), 108. Jordan's Appeal (Pa.). 181. 188. Kaas v. Beltney (Pa.). 804. Keener v. Grand Lodge (Mo.), 72, 135, 241, 281, 282. Keiser v. Bsterly (Pa.), 187. Keller y, Bading (III.), 86, 287. Kellogg ▼. Freeman (Miss.), 16, 876. Kelly T. English (Tex.), 88. —-np T. DicUiuon (N.T.), 282. 873 ° ^*^^ ^^^^' "• "«• ^{"•^i ^" McKlnley (Pa.). 190. an« y. Faber (Pa.). 28L ' ' *" angsbury v. Davidaon (Pa.), 283 Clnney v. Hynds (Wo ) 97 Ciaterbock v. Fanning (Pa.) aS ClBterbock V. Todd (Rt) 79 Clstler V. Thompson (Pa ) 47 ?„1^'.^- """"ton (Pa.). 199.* 167y25"'''°~"^ ^'•*'*>' "• ^oenlg v! New York (N.Y.) 86 lOl iopplnger v. O'Donnell R l) jb ^ 103. 339. 840. 407. ^ '' "' lortjohn v. Selmers (Mo.). 87 343 Era y. i^utrfch (Pal). 283. ' ' eile V. Pearson (Pa.), I69. Ml.''" ^""^ ^°'^ ^^'^•^' 132, 5"[** ▼• Maloney (Pa.). i«9. Iaa ""' ^^ ^^ 43 Llpplncott y. Longbottom (Pa.) 27i Lobb y. Ul'lman (Pa.). 275. Long y. Barker (ill.), 12. Look y. McCahlU (Mich.), 88. n1n!.°^ if*""* ' 1«, 239. Mercantile y. Dlmon (N.Y.). 36. MercanUle y. Hasaey (N.Y.). 19L MercanUle y. Huntingdon (N.Y.). 36. Meyer y. Jeske (Pa.), 406. Meyers y. Prentiell (Pa.), 276. Mlchenor y. Lloyd (N.J.), 39, 141. Miller y.'Bladk (Pa.), 303. M ler y. De Peyster (N.Y.), 800. Miller y. Peck (W. Va.), 108. M ler y. Watte (N.Y.). 300. M ZiT'il"^ ^T- O'SulHvan (Wit.). 78. ""«?•" ▼• Jobes (Pa.), 806. Mitchell y. Northwestern (111.). 67. Ifo''" ^'"*' ^^•'^■^' "• "' ""• Monks y. Miller (Mo.). 876. Montague y. Jewelers (N.Y.). 72 141 Moore y. Barnheisel (Mlch.\ 136. ' Moore y. Ernst (Miss). 876. ' ZSVl UNITED STATES CASES CITED. ! : "ii. Ml Moore t. HIU (Ga.). 46. Moore v. LeUr (Pa.), UO. Moore ▼. ParUow (111.), U, S9. Moore's PeUtion (P».), U. Morgan v. Fillmore (N.Y.), 62, 126. Mwgan T. Perkina (Oa.). 806. Morgan t. Spangler (Ohio), 384. Morin T. BaUey (Mln), S3, 376. Morrill T. Manhattan (111.), 11, 87. 88, 160, 161. Morris t. Cain (Lou.), 343, 367. Morse t. Steams (Mass.), 27. Mosher ▼. Bruhn (Wash.), 33. Mount Holly v. Ferree (N.J.). u. 62, 68, 60, 379, Mmttds V. Gassldey (N. Ca.), 380. McCauley v. Sears (Idaho), 34 McCUntock v. Helberg (111,), 34. McCormlck v. Supreme (N.Y,),' 86. McCom T. Esher (Pa,), 198. McCoy V. HcMurtrte (Pa.), 124. McCrea v. Cook (N.Y,). 138. "^f?f y ▼• Inge (N.Y.), 76, 84. 124. McCuUen v. Metropolitan (Pa.), 138, McCuUough V. Ooodhart (Pa.). 406. McDermott v. Kline (Pa.). 273 276^ McDevltt V, Sullivan (Cal.). 26 McDonald v, Allen (Wis,). 12. *4L McDuffee v. Collins (Ala.). 39. 63. McElroy v, Baer (N,Y,). 166. 176. 238. 242. McFadden v, Swinerton (Or,). 29 30 63, 68, 70, 160, McGarrah v, Prather (Ind.), 89. 365. McOaw V, Adams (N,Y,). 30. 62. 165, McHenry v. Hazard (1866). (N,Y,). 339, 342. '' McHenry v. Hasard (1871), (N.Y.). 340. McKay v. Draper (N.Y.), 18, 19. McKlnney v. Kuhn (Miss.), 47, McLemore v, Benbow (Ala,), 234, McMasters v. Bank (Pa,). 218. McNeil V, Ames (Mass). 26, MoWhlrter v, Halsted (N.J.). 11, 34. 209. 379. Nash V. Smith (Con.), 52. 89, 91, 349. Nassau v. Yands (N,Y.), 131. 132, 133, National v, Augusta (Ga.). 128, 131. National v. Cable (Conn.). 349. National v. Kleinwort (N.Y.). 134. National t. Lauahan (Md,). 11. 66, 267, National v. Plngrey (Mass.), 62, 373. National t. Platte (lU.), i. 17. 64 68, 81, 122, 147. 164, 169. Nealon v. Flynn (Pa.), XS4. NelU v. Wuest (N.Y.). 6. . Nelson v. Oorgee (Ala.), 99. New England v. Keller (N.Y.), 87. New England v. Odell (N.Y.), 72. Newhall T. Kastens (111.), 2. 11. 119, 121, 208, 341, 364. New York v. Haws (N.Y.), 2, 12, 46, 60, b4, 68, 87, 88. 133. New York v. Flagg (N.Y.). S42. Nice v. Hlng (Pa.). 231. Nichols T. Burnham (Pa.). 164. Norbeck t. Davis (Pa.), 283. North Pacific v. Lang (Or.). 11, 62. 71. 82, 169, 161, 287. North Western v. Marshall (Pa.). SOL (Ml Run V. Gale (W. Va.), 12, 24, 81. 121, 411. O'Nell V. Wilt (Pa.), 214. Oppenheim v. Leo Wolf (N.Y.), 66. 68. 164, 286. Order of Golden Cross v. Merrick (Mass.), 86, 63. Orient v. Reed (Cal.), 66, 73. Orient v. Sloan (Wis.), 110, 206. Orr V. Larcombe (Nev.), 11, 339. 377. Osborne v. Taylor (Va.), 341. Owlngs V. Rhodes (Md.), 8, 6, 160, 161, 188, 373. Packard v. Stevens (N.J.), 74. Palmer v. Elliott (N.Y.), 98. Parker v. Barker (N.H.), 41. Parks V. Jackson (N.Y.), 341. Parmentier v. Stewart (Pa.), 229. Partlow V. Moore (111.), 142, 159. Pashley v. White (Pa.), 104, 138. Passavant v. Gummey (Pa.), 234. 237. Patterson v. Perry (N.Y.). 17. 18. 72. Penn v. Union (Cal.), 16L Penn v. Watson (Pa.), 17. Peoples Savings Bank v. Look (Mich,), 99, Perkins v, Guy (Mont.), 376. Perkins v. Morgan (Ga.), 190. Perkins v. Trlppe (Ga.), 6, 11, 29. 107, 161. Peters v. Qhaner (Pa.), 303. Pfister V. Wade (Cal.). 2. 11, 72, 81, 86, ? PhiladeU r. Clarke (Pa.), 11, 91, 40S>, Phillips V, Qulgley (Pa,), 231, ullUlM T. R«M»il (P«.), M, 95. 188. leree t. Boston (Maaa), 18» '^^°^A^ Aldrtdge (Tenn.), 237, 282, .oUock T. Morris (N.Y.), 80. Pomeroy t. Canley (Pa.), 117. Pool V. Lloyd (Mass.), 34. Pope V. Amea (Or.), 33, 403. ^5j*!mT\^*** <"*"•>• 37. 378. Port Clinton t. . Clevestone (Ohio), , — J V. Bmmett (N.Y.). 131 132 m ; ^under. v. PoW (Pa.)'. Si. ' "^^ ; Powell T. Ledyard (Ala.), 99. nf ". JBStiUL (Ohio), 332. ffJ: , • Myers (N.Y.). 33. 189. nee T. Holman (N.Y.) 144 ricLett V. McWlUlams (Pa.), 79 I rosrewlTe v. German (N.Y.), 78,' 88. ,' OTldence v. Barr (R.I.), 33. ovMence v. Wilkinson (R.I.). 36. OTldent V. White (Mass.), 37. OTost v. Algeo (Pa.), 169. 176. «ey T. Miller (Del), 138. m *^"°*"'' ^N.Y), 16, 17, lulnn V. Green (N. Ca.), 60, 380. lulnn T, Patton (N. Ca.). 41 A*Ii^ ^' °S*''« <'*••'•>• »' 104. 287. 342.^* ^"^"'■°" (N.Y.), 27, ^nnlger v. Spats (Pa.). 187. Mnnlnman v. Hood (Pa.), 304 m. "' ^^ ^^'^■^' W' 220, ftlchardson v. Belt (D.C.), 11. 155, Richardson v, Brunswick (Pa.) 2aa Richards T. Salter (N.Y.). 96 ' iS* Mpls Appeal (Pa.), 303. K-'v^:.*^°"''°« (I^). 237. tlSl^ ▼• Bodlne (Pa.). 233. ^fiST V vSr.°° <"°->' "»• "1 131. ^*°''°™« (N.Y.), 130. Jobson V. Du Bose ((3a.). 27 M V. Cook (Pa.),^'' • dodgers v. Douglass (Pa.), 142 lodgers V. Santa ClauB (Pa.). 38 {ohrer v. Turrlll (Minn ). 84. UNITED STATES CiSES CITED. xxvii Bundle V. Gordon (N.Y.). 380. Hush T. Vought (Pa.). 273 ! S^K J- ^^"^^ <^>' «'' 72, 403. Ratsehmann v. Schloss (Pa.), 231 ^chsel V. Farrar (111.), 62, 84. I ^'""'^jyg^-jTownsend (Mass.), 68, Sammls v, L'Engle (Fla ^ !>a mo |£v^rF^nd^f!J:7arnS',^Se Scatchard v. Mfg. Ca (Pa f 231 Schell y. Lowe (N.Y. ,S/ iff i^hi"^*" ''• ""^•5' ' «' 133, Seaman v. Wright (N.Y ) as Seeley r. Oarey (Pii) 234 Shsrpless v. Merriman (Pa ) 2'^"- SWve V.Finn (Pa.). 274.' ' '^• «bley V. BqulUble Life (NY) «« fflckes V. ^amer (Pa.). 406^' •*' l»nJ? ^-^Wllmerdlng' WY.) 179 Slfford V. Beatty (Ohio) 4 aai Simmons v. MaMfleld ba!) lio Smons V. Hearn (N.Y) 106 fSf,^fv-He/er(*PiL)/23f- Smith T. Emigrant (N.Y ) j sk ia« Kl: ^- i^«" (N.J.) 82.' ' "*' ^"• Smith T. Stoddart (ftL), iso. ^^VUl UNITED STATES CASES CITEO. ' ;li Snodgran r. BaUer (Miss.), 11, 2S. 29, 62. 87. Ita. 128. 876. Snyder v. Bliss (N.Y.), 106. Soaders v. SUofler (P».). 231. Southwark v. Chllds (N.Y.). 72. 182, 183. South Western •▼. Benson (Ark.). 11, 72. Sperlng y. Langhlln (Pa.), 283. Sperry t. Bthrldge (Iowa), 198. Sprague t. Soule (Mlcb.). 154. Sprague t. West (Mass.). 341. Spring T. South Carolina (& Ca.). 36, 96, 286. Standley t. Roberts (Ind. Ter.), 25, 62. 84. 365. Starling t. Browns (Ken.), 52, 128, 136, 867. State y. Ctennert (Tenn.), 135, 408. Stauffer y. Souder (Pa.), 238. SterUng y. leath (Pa.), 306. Stem y. Jones (Pa.), 25. Steyens y. Oermania (Tex.), 25, 408. Steyens y. Warren (itass.), 27. Steyenson y. New York (N.Y.), 129, 132, 133, 140. Stewart y. Smith (Pa.), 134, 196. Stewart y. Wilkon (Pa.), 275. St Louis y. Alliance (Minn.), 327. Stoddart y. Price (Pa.). 188. Stokes y. McKinney (Pa.). 230. Stone y. Reed (Mass.). 69. Storrs y. Payne (Va.). 41. Strange y. Bell ((}a.), 11, 119, 121. Sulliyan y. KnighU (Mo.), 36, 122. 131 138 Sulsbacker y. National (N.Y.), 126. Sunberg y. Babcock (Iowa), 199. Snperyisors y. Deyoe (N.Y.). 839, 842. Suprmne (Touncil y. Bennett (N.J.), 74. Supreme y. Merrick (Mass.), 4. Supreme y. Raddats (111.), 181. Tauton y. Groh (N.Y.), 26. Taylor y. Bonaffon (Pa.), 234. Taylor y. Satterthwaite (N.Y.), 83. Temple y. Lawson (Ark.). 11, 347. Ter Knile y. Reddick (N.J.), 136, 143, 164. Third National y. SkiUings (Mass.), 124. Thompson y. Waterman (CJa.), 177, 277. Thomson y. Bbbsts (N.Y.), 27, 66, 86, 286. Tieman y. Reseanlere (Md.), 9L Tfeman y. SteUle (Pa.). 404. Towle y. Swasey (Mass.). 88. Trayellers y. Healey (N.Y.). 85. 137, Trwnont y. Manly (Pa.),. 177. Trenton y. Heath (N.J.), 88. Wgg y. Hits (N.Y.). 122, 131, 166. Turner y. Lawrence (Ala.), 41. Tynan y. Cadenas (N.Y.), 86. Tyus y. Rukt (Ga,), 62, 164, 165. Unangst y. (3oodyear (Pa.), 283. Underwood y. Boston (Mass.), 122. Union Bank y. Kerr (Md.>. 46. 48, 373. Union Sayg. Bank y. Pool (Mass.). 97. Union Trust C!o. y. Stamford (Ctonn.), 343. 849. United SUtes y. Bussey (N.Y.), 47. United SUtes y. Vletor (N.Y.), 61. United SUtes y. Wiley (N.Y.). 84. Usuer y. Buck (Pa.). 238. i Van Auken y. Buxton (Pa.). 249. Van Buskirk y. Roy (N.Y.), 34. ' Vandyke y. Bennett (Pa.), 61. Van Loan y. Squire (N.Y.), 26. Van Winkle y. Owen (N.J.), 52, 338, 389. Van Winkle y. Young (Pa.), 100, 273, 274. i Van Zandt y. Van Zandt (N.Y.). 72, 73. 86, 87. Varrian y. Berrien (N.J.), 128. Venable y. New Ydrk (N.Y.), 106, 138, 139. Vent y. Pashley (Pa.), 107, 231. Victor y. Excelsior (Pa.), 63. Vosburgh y. Huntington (N.Y.), 29, 90 Wafer y. Hanrey (Kan.), 164. Wagner y. Hower (Pa.), 168. Wakeman y. Dickey (N.Y.r, 69. , Wakeman y. Klngsland (N.J.), 154, 160, 287. Walker y. Bamberger (UUh), 69, 77. Wallace v. Clingen (Pa.), 11, 403. Wallace y. Sortor (Mich.), 76, 123. Walsh y. Rball (Pa.), 110, 206. Warder y. Dayis (Pa.), 231. Ward y. Whitney (Pa.), 284. Ward y. Zane (Pa.), 214, 276. Ware y. Deacon (Pa.), 2>4. Ware y. Western Bank (Pa.), 80. Warfel y. Bear (Pa.). 283. Warner y. Jaeger (Ohio). 832. UNJTXO STATES CASES CITED. Warnoek t. Harlow (CaL), 269, M2. { Waiblogton y. Btit (D.C.). 828. Waablnston t. Lawrence (N.Y.), 161, I 220, 222. I Waterman t. Langdon (Pa.), 168. I Warerler t. McKennan (Pa.). 275. Wayne v. Alrey (Mich.). 36, 287. Webrter t. HaU (NJL). 84. Webater t. McDanlel (Del.). 33. iWehle ▼. Bowery (N.T.), 68. I Weldln T. Booth (Pa.), 233. r Wells V. Miner (CaL). 11, 64, 68, 81, 122. US, 166, 348. Wella v. NaUonal (N.T.), 129, 181, i 139. I Wenstrom t. Bloomer (N.Y.), 37. Wertheimer t. Free Sons of Judah ( (N.Y.), 140. [Weatenrelt v. Aekerman (N.J.). 3. I 129. 131. 379. |Wh««lock ▼. (Jodfrey (Cal.), 88. IWhltbeck T. Whiting (IlL), 24, 29, ■ 68. "*« ▼• Comegys (Ind.), 26. hlte T. Rech (Pa.). 826, 833. ?!* IS*" ^- Bo'dnuui (Pa.). 239. Mf*^***" ^;, dickers (Pa.). 281. altney v. Cowan (Miss.). 24 so 62.68.164.241.27rS76. ' ' Mix Wllll^..Matthe^%/f„,„^ WUll^. V. Walker (a Ca.). 88, 97. Williams T. Wright (Tex.). 12. 408 wites;£;^rce^?S)i?4 ''*'^'T6%3:-28r'^ "^ <^-->' wSSSU" ^"'"bridge (Mich.). 100. Wlnfleld T. Bacon (N.Y ) ana Vit Wing T. Bpauldlng Yvt.! «? SSSC V'S'o^"!-^^' '«• ^ 11. M. ih. m!^"^" <>«"•>. ?;2 V ^^'^^ ^N.Y.). 121. lates v. Tlsdale (NY) utt ea ■•■,«. 181. 169, 16L ^' *•• '"• "»' Zacharlas v. Tolton (Pa.) 94 ig. Z»chary y. Gregory itx. ,ii "*' Zllhman y. Zllhman (Md.)! 228. BIBLIOGRAPHY. Vlner'B Abridgment (1768). VoL IX., pitsa. 419^40. Simon's Interpleader. Bng., flnt edlUon (1842). second edition <1860). ' Reeves' History of the English Law, Vol. II, page 687. et $eq., Flnlason's ediUon (1869). Cabab«'s Interpleader. Bng., first edIUon (1881), second edition (1888). third edition (1900). Bowen's Sherirs Interpleader (1882). PennsylTania. Warde's Interpleader, by Sheriff's and Bailiff's, Bng. (1887). American and English Bncyclopiedia of Law (1890), VoL XI pages 494-606. Encyclopedia of the Laws of England (1898). Vol. VIL. nana 18-80. *^ Green's BncyclopndU of the Laws of Scotland (1898). VoL VIII pages 877-884. Encydopadia of Pleading and PracUce (U.S.), (1900), VoL XL. page 444. See works on Equity Jorisprndence, and particularly Story. THE LAW OF INTERPLEADER. CHAPTEB I. INTBODUCTOBY, deJ^!^abl/^~'°f?J''^!f " * ^^^^ proceediBg pel them to litigate ST rfiAf 7*"; T' P''**^' *« «»»»- and thereby to S evfji^f* ^^J^*^^ ^'*'^'^° *^«™»«J-««' or otherwise might Z b^ '^ *''' T^ ""^^^ ^^^ been tern means, tXut oHfa'St''^- ^*-«% the jng^s it were between, Lfore\KrirT**"^ '^PP*^" determined.* *'*® pnncipal cause can be Tlw B0fld for tlie remed occurring in a commercial com^iTtrwhl^L""*^^^ and unforeseen circumstances a JZ^ u "" P**''^' or has incurred a liability or i! ? ''^'' "'""^ * ^^bt, « '^Bable to deten^r^C^ LCr ^'^ P'«P«'^^ several adverse claimants it shoulTr "'> *** ^^''^ *>' vent the probable or .«« ^? rendered. To pre- arising from the 'p^rtLTV"'^^^^^^^^ °^ ^«-^-> such claimants the^oT^ „ *'*'°"' ^^ ''^y "^ »" of claims by mi^VZt,^!''''^' *^«"^ *« ^^ their tween themselveJnSS^^'^^r's th "*": °^ ^«*"« »>- them to intcrplead-on the aZn . ',°°^ '^" *''"°P«1 ""V"-'-'--'^ -""Solars j--^ 'J«c bB Diet. (1TS2). ■4. LI. I I ' '' i I 2 THB LAW OF IMTEKPLKADKB. the liability, whether as a stakeholder, tenant, agent, a pablic officer such as a sheriff, or as an accident^ recipient of property. He has a right, upon showing himself within the roles which goyem interpleader, to claim the equitable intervention of the conrt for his complete indemnification and relief.* It has been said that the mere statement of the principle shows its justice.' The groimd of the relief. — The right to the remedy by interpleader is founded, not on the consideration that a man may be subjected to double liability, but on the fact that he is threatened with double vexation in respect of one liability.* The ground of the relief is not, that a per> son may not be able with great attention and caution to make himself lecure, but that he may secure himself by one suit instead of several, as one payment ought to discharge him." It would be a disgrace to the administration of jus- tice, if the law should levy a sum of money from a defen- dant for one person, and the same law should, without any default of the defendant, compel him to pay the same debt to another.* The objeet in interpleader. — The supreme object of an interpleader proceeding is to protect a person when he stands in the situation of a stakeholder not knowing to whom to pay the money or to deliver the proptrty, so that he shall not be vexed by contending claimants, whose contention is not in reality with him but with each other, when a recovery against him by one party will not be a protection against the claim of the other.' The remedy has limitationi. — ^The ordinary interpleader, whether in equity or under a statute, is not extensive ' Beck T. Stephani (18M), 9 How. N. Y. 103. ' Evans v. Wright (1866). 13 Wj R. 468. * Crawford t. FtaOier (1842), 1 Hare 436; Pfister t. Wade (1880), 50 Cal. 43; National ▼. Platte (1894). B4 111. App. 483; Fairbanks ▼. Belknap (1883). 136 Mass. 179. *Angell T. Hadden (1806). 16 Yes. Jan. 247. * Coates T. Boberts (1833), 4 Baw. Pa. 100. * Badean t. Bogers (1830), 2 Pal. N. Y. 200; HasttngB t. Cropper (1867). 3 Del. Gh. 166; Newhall t. Hastens a873). 70 111. 156; New York V. Haws (1873). 35 N. Y. Sap. Ct. 372; LivingBtone y. Bank of Montreal (1883), 50 111. App. 662; Hartford ▼. Cnmmiags (1807), ?» Neb. 286. he u.u.t defend iTs^^fTwiirT' *^'°* *** ^°*«'P'««'J' doe. not .lw.y. wtktl7J;^j;i,t\::^; ^^^^^ «« powible, it settle, the mtter J^t^ein /ul * ."' '' ^"^ and it .top. other litigation " ^'^ ^''^ claimant., plaintiff ha. done ti J it ^d *k' ^T" " """^^^ *he hiH suit remain, a! tre ^^^^rl t7 "'^ "'^^ "' '=°"'* proceeding., yet havinf^^v . ^""^ ®*^* *« ^"^her i/ J- die.*:SuT;t ZL''; M^^^^^^ "'^ *»' ^^«' the court defendant, remain^^^ w !k ""7' *" *^ ^*"^- The nonentity except •i^r^^^'o^.Lctt.;^^"' "^^^ * fore, w' n the remedy i^ *w.J^^ • .^® '®'"^t ^here- diaappe. * from ttTpSc^S^'tt-, ":u*^* *^^ -PP««*"t ant. litigate the mlS^oT'th?" ' ,*^' '^°^*'*^« '^^ involving the .taTholLt^^ themaelve., without further haa^real^ no ^^ltJt7li^:^. ^*' ^t'^ ^« fl»tof .»ai.^ rto^ T'""" ■" '«° ascribed M ally "irXJirr *** •»^*-'n« =»■«. «e gener- »/ioThe''Sr„„":?^r.derr°* '^°' •'-*- .». ao.h. i. ^t^jt ^d.:,T^t^^j^:^ TBI LAW Ot nmBPLBADHt in ftToor of the Applicant.** As to interpleader ttatntet it has been said that, a|i they proride an inexpensive and speedy mode for the litigation and settlement of oontro-^ versies, of the nature under discussion, the remedy should not be so restricted or clogged by technical qualifications, as to deprive it of any of the advantages intended to be secured imder a just and liberal construction and applica- tion." In EngUnd it has been stated that, the authorities, the history of the law, and the modifications which have taken place in interpleader show, that eminent judges have been of opinion that the scheme of legislation has been to remove the restrictions which formerly existed, and to give a wider jurisdiction to the courts;** and as to sheriff's interpleader that the ccuits are now disposed to be more liberal than when the Act was first enacted.*^ Belief is diseretioBaxy.— The English Interpleader Act of 1831, and most interpleader codes which have been founded upon it, are not compulsory, but authorise the interposition of the court at its discretion upon proper occasion, and upon such terms as may be just. The duty of the court is to see that the party applying for the exer- cise of the discretion has not voluntarily put himself in the situation from which he calls upon the court to extricate him.** Nor is it imperative on the court to grant an issue, when applied for by a sheriff, it is not a matter of right but of sound discretion under all the circimistances.** In Ireland it has been held that the court is not to be coerced into granting an issue.** Interpleader not imparatlTe. — ^When a defendant has obtained an interpleader order, that a third party claim- " Supreme t. Merrick (189S). 108 Man. 374. " Barnes v. New York (1882). 27 Hon. N. Y. 236. " Ex p. Mersey Docks, etc. (1889), 1 Q. B. B46. "Holt V. Frost (1868), 8 H. & N. 546; DarlinR v. Collattou (1883), 10 Ont. Pr. 110; Macdonald v. Great North-West (1894), 10 Man. 83. "■ Belcher ▼. Smith (1882), 9 Bing. 82; r^nnr v. Mntnal Life (1873), 53 N. Y. 636; Barritt v. Press Pub. Coy. (1898), 25 App. Div. N. Y. 141; Siiford v. Beattr (1861). 12 Ohio St. 189. » Bain T. Funk (1869), 61 Pa. St. 185. " Deehan v. Lynch, 2 Ir. Jnr. O. S. 15. WBODUCTOBT. ««nted to han, but nmy^o on .n^T?**, °' *^^ '*'»" the remedy." A .U^te wl^rh .1" *° **^^ *^« »>«-«fit of plead, is not intei^^tottt r ' ''''"""* *° '°*- . defendant, to ^t up an outet^nH '°'"°'**° ^^ '^ht of plaiBtiif, with which L co!^ "^ t"* '."^"°' *^*'« *° »he ^ to interplead, hi. LSyo ^^'i " '^ '^'^"^'°* WM Without the statute!** ^'^'"'' '"'»"'»« « it Utigmtioiis iBTolTad a two litigations. First thTnl^l^'^^"'^'' '^^•^^ «^<»lves ««t claims the riirh7to t ^T"^ ^ ^^'''^ the appli- t^ -ay be, eitT^\'^r:'J^ '^' ^^o^ty,t, ^»^> or it may arise ontT^ Proceeding commenced by ^directed betweelTTl^Sr V^ T*"* ^^-^ htigations are wholly sensrlTp ii P* '"^J^* <»^ these •ep«ate allegations LTpTrlte'^lf ^^T*' ^^^^ ^'l«i'e 'ore, that if the mlicT^enmI^\ '* '**"^"«' *'^«- tiie coart will never^tain hS T^v,^ t^ interpleader » his presence to deternS^ ^e 2.^ r'u"' ^"^^ claimants." "*® "^nts of the adverse W«in «f the wBady—Tii- ,--« j ^ origin. Courts of Law Li Fn!i^f ^ ^" "^ Anglo-Saxon awarded within a n^^ !^t" iT.' '^'^ ««'^^ Ple^er,' as it was^"e3 't '^ ?^ »' '-ter-' ciples of interpleader seem to h. ,1 P"''*'*'* "^ P""' court of Chan^ ^ E^«d at^d'at^l*"'^*^' '"^ *^« ongin in courts of law ThL M !^ ""bsequent to their «ome extent the an^;^^'7,r f <^^f«e^ followed to relief to a much wider ^'l,"'" ^*^' ^'^^ "tended the cednre at common h,w a Wal'w ' ^'l*'^"*^ '""^ P^- - Neii, . w "t^^«^« became obsolete, the fun- "Sir.:- ^""- oSi?^ii ^'- »«• 6 THE LAW OF INTERPLEADER. daniental principles on which it was founded continue to be applied in courts of equity, and are the basis of the interpleader statutes which have since been enacted in. var- , ious countries. Beference will therefore be made to inter- pleader, first in courts of law, second in courts of equity, and third under interpleader statutes. In courts of Uw before 1881.— Interpleader at law in English courts was awarded where there was a' joint' bail- ment by both claimants, or where a chattel had come to a man's possession by accident, and in a few other special cases.** The subject in its narrow range at law was greatly elaborated and abounded with technical terms and plead- ings." The practice of depositing deeds and other chattels, in the hands of a third person, to await the doing of some act upon which they were to be redelivered to one or other of the parties, gave occasion to many actions of detinue, against the depositary, whenever the crises happened for their being demandable. If one action of detinue were brought for such deeds or chattels the defendant might plead for his protection that they were delivered to him by the plaintiff and a third party upon certain conditions, and that he did not know whether the conditions were performed, wherefore he prayed 'gar- nishment,' as it was called, that the third party might be summoned to show whether they had been performed; thereupon a scire facias issued against the third party, who, under the name of garnishee became defendant to the.suit in the place of the first defendant, the latter being then considered out of court, as he either brought the subject matter into court, or held it to deliver to the person entitled.*^ If two actions were brought for the deed, one by each of the parties who concurred in the bailment, the recourse " Bcc for thia and the following paraicrapha Reeve'a Hlatory of the Engliah Law. Fiulaaon'a Edit., Vol. 2, p. 08(1 et wq. Ruaaell v. Church (1870), OB Pa. St. 9; Bridge v. Martin, 3 W«»t. Law Monthly (Ohio) 20. " Vlner'a Ab. aT58). Vol. 9, pagea 41»440. "Blch ▼. Aldred (1T04), 6 Mod. 216. INTRODUCTOtV. » of the defendant was in nn. n,r tu»^ •« , . might interplead The nLnf ' '^ wo plaintiffs J-* "^"P**""- Aoe plamt wr.ose su t v , 8 of the nrinr -the ca„rt .. .t pleased „ight .»ign either to b. "2: of ."^ITTi-'u '.'"' ""'*' "" *" • ">™ depo.itarv of a deed, which he held a. tmtee for two per«)„g\So„M not be harra^ed by both, but .hould be .Uo^cTto eaVo" w^wrthiri""' ""'^ "■"'"' «■' ''*'■' "" '^ '^«^ If the depositary might be liable to both partiea he could not have the privilege, but was left to deTnd jK,Jh actions as best he could. It was «A,r1 +K«f * k 7. cWo himself with .everallZe;:^ ri''^,tVJ7; '" and he must abide hv if if ♦«,« i.- ""^ H.I. deed,, onet ^ heir' wbTw" 'rtiZt'oT'",' '"/ |md one b, . Wdor npon a bai Jn oTdelL to Wm no privity bofween ft."taiZ.' '^'°'""' ""' ""«■■' "« In lome casea, nolwiUutandinir the ml.. ... sowuh.dosred'thtirtirpuss- ^ - 1 8 THE LAW OF INTERPLEADEK. in the bailment, and denied a several bailment as alleged by them, the court wovdd not go behind his allegations, but would suffer the defendant to nave an interpleader If a defendant prayed garnishment, and afterwards the garnishee brought an action of detinue against him, inter- pleader would not lie on the motion that the defendant was out of court by the garnishment. The opposite was also held. If the two actions were brought in different counties, it was held at one time, that the defendant might have inter- pleader, and on another occasion that he might not; there was also the same uncertainty if the bailments were alleged in different counties. Afterwards it was agreed that the defendant might have relief, upon the idea that the detinue, and not the bailment, was the point of the action. Interpleader was allowed in some few other actions be- sides that of detinue. When two writs of quare impedit were brought for the same avoidance: as where two patrons each offered to a bishop, a different person for the same vacant ecclesiastical office, the bishop might be relieved by an interpleader. So, where two guardians each claimed an infant's person, the person in possession might be awarded an interpleader, but not if he had taken the ward away from his guardian. And lastly if a person were found by office to be an heir of a tenant of the king in one county, and another were found such in another county, it was the practice that interpleader be awarded before either had lively, that is possession of the lands on becoming of age. From this description of the process of interpleader at common law it is obvious that in its narrow range, it afforded no relief in a great variety of cases. Finally, when the action of trover, in which interpleader did not lie at law, took the place of detinue, this process became of little practical advantage in the years preceding 1831, when the first interpleader statute was enacted. In 1831, it was said in England by the Lord Chancellor of that date * a much more convenient mode of dealing with INTRODUCTORT. g conflicting claims haa succeeded to interpleader at law "r ^« , t^^ "*^? '^' stakeholder says to the claimant' whose title he considers the best, take the goods but rive nLTint""^"^!^' i^^^'"^^ *^« stakeholder lends hi« name to the action, the real defendant is the person who has given the indemnity. This arrangement produce, the whole effect of an interpleader at law, or in eqi^ty and the action is tried once for all, and although the nom- mal parties are the stakeholder and on. of the claimants, the real parties are the two conflicting claimants. This course has put an end to interpleader at law, and what now remams IS only to be found in the court of Chancery ' " In Upper Canada before the court of Chancery was established in 1837, it was said that there was no meln whatever, by which relief could be had, other than the formal proceedmgs by garnishment or interpleader at law « In Pennsylvania it was enacted in 1836 that the court of Courts of Chancery with regard to persons requiring relief by way of interpleader." h ug In Conrti of ChMicery.-The court of Chancery in Eng- lonl nf° •'' * i' '^'^^ concurrent jurisdiction with r.^, , '""^ m? ^'^ ^ administering reUef by way of mte^leader. The narrow range within which Jhe legal remedy was awarded, rendered it quite inadequate at law^ and Anally It seems to have disappeared. Courts of equity law, extended this remedy to a much wider range of cases and have continued so to do. It was «ud that in looking at the rules of ihterpleader at law, you discovered the prin- ciples which govern the court of Chancery." The principles of interpleader as foUowed in the court of Chancery in England were early carried across the Atlan- tic, and have ever since been consistently followed in all ■Petwon T. Oardon (1881). 2 Bum. 4 M.. p 613 -1 Upper Ctnada Jurist 88. ' ^ ** ;Pa. P. L. (1886) T88,.«.. 18. Pc««on V. cardon (1881). 2 Bun. « M. 618 f t I! i . 1 t I ', ] •■ V: I '; '>■ 10 THE LAW OF INTERPLEADER. the courts of all the various States and Territories of the American Union, in which equitable relief is adminidtercd Principles of interpleader in equity.— The essential prin- ciples of interpleader in equity, may be summarized in a paragraph as follows: The jurisdiction of courts of equity to grant relief by interpleader is properly applied to cases where two or more persons, in some manner of privity, severally claim the same debt, duty or property, under dif- ferent titles or in separate interests, from another person, who not claiming any title or interest therein himself, and not having incurred any independent liability to either of the claimants, and not knowing to which of them he ought of right to render the debt or duty claimed, or to deliver the property in his custody, and being unwilling to take the risk of deciding between the claimants, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflicting claims of the parties. The protection of the court is therefore sought on the most obvious equity, that the claimants should be put to litigate and settle the contest between themselves without involving the applicant in a dispute, in which he is not interested to any greater extent than as a mere stakeholder, and to prevent him from being compelled to pay or deliver the thing claimed to both the claimants, as well as from the vexation attending upon the suits which are or possibly may be instituted against him. The court must be invoked promptly before any judgment against the applicant has been recovered, and, as he is seeking a favour in asking protection the court will not permit the proceed- ings to be used collusively to give an advantage to either claimant, nor will it permit the applicant to delay the pay- ment of money due from him by suggesting a doubt to whom it is due, therefore the applicant must annex an affidavit to his proceedings that there is no collusion be- tween him and any of the parties, and if any money is due from him he must bring it into court, or at least offer to do so. Under these circumstances the court will take such action as will protect the stakeholder without delay. INTRODUCTORY. 11 leaving the parties disputing to litigate between themselves as to their rights.** Fow caiiditioiu.-From this description of equitable in- terpleader It will be seen that four conditions must ordin- arily exist before the remedy will lie:-(i) the same thing, debt or duty must be claimed by both or all of the parties against whom the relief is demanded; (2) all the adverse titles or claims must be dependent or derived from a com- mon source; (3) the person seeking reUef must not have nor claim any interest in the subject matter; and, (4) he Th! 1 fT'^ "" independent liability to eithe of between them m the position merely of a stakeholder." Thornton (1837) 2 Mt1*T,i .fii^' ^ ^^'' ^^- Crawshay v. 4 Myl. & Cr. 186; NeS^v^arter ("^^2 h"** M l^T'«i?^> Ebbinghaus (1883). 110 tl a Kfta. w„ ^ "• * M. 334; KiUian r. Ala. 267; GilLn r.' oJrdtfwafte Ss) ^^ria^^'^^'^r"". <^®*?>' * son (1857), 19 Ark 148- Hnnth wZ^'' i ^^' Temple v. Law- 283; Pfister v. Wade aSM? M C.? I^ m ^''ST" <*^>' ^ ^'^■ 13 Add Cas n r iqt. a* ' <^«'- 43; Bichardson v. Belt (1898) V Dixon (^) li^S = Bi«"^ I; ^" ' W N. Y. Sup. (3t. m\ wS loJ ?.,nfi^'« ^;,SS- T' McDonald r. Allen (1876)? 87 46 Atl^i m^rT: tt "'" ^^T^' *lii'- «*' *"»**• ^- Shaw (l&O). a8a7> 2^1^^°™/.*^' ^ ^*'»^"- 218j8leTekIng v. Behrena UBo7>, ^ M. Ik G. oHl; Badean ▼. Roaeni llSflOt 2 Pui w v ther defendant wiU be directed to litigate their rights by themaelvea.*' Sometimes the court, while holding that a bill is not proper as a bill of interpleader, wUl retain all the parties in the htigation and endeavour to work out full and com- plete justice between them.*» ,^}^\'^?V^c»Jit has notice that the claimants propose to litigate the matter between themselves, his application for an interpleader will be refused." Origin of flrst interplMtder rtatute.-The first, of all in- terpleader statutes, was enacted in 1831 by the British Parliament.'* It seems to have had its immediate origin hrough the report of a royal commission appointed in I ;. !° ^"*'"''® ^''^^ *^« P™«t»c« *»<' proceedings of the English courts of common law. In introducing their re- port the commi- ioners said:— 'We shall submit the exped- iency of investing courts of common law with several new powers of a summary or equitable character, calculated to economize both time and exj 3nse, and prevent unnecessary resort to tiie aid of courts of equity.' The report deal^ vith ISr'o '*'' '"'^ *"" *^^ following with regard to .ater- 'By the common law, if two persons deposited deeds w.(h a third, to be redelivered according to the terms of an agreement, and one of them brought an action of detinue against the depositary, the latter by a process called gar- nishment, which is in effect a notice, might compel the other depositor to appear and become defendant in the ac ion m his stead; and if a person were sued in separate actions of detinue by two depositors upon such a deposit, or by any two persons claiming to be the owners of goods C^'"^^&'° ^' ^^^ <1882). 8 B. * Aid. 108; Jid NewlS CommlMionPra' 2nd Report (26th Peby., 1880). p. 24. u THE LAW OF INTERPLEADER. ^ I ( Bin .d which he had foanH he might allege the deposit or finding, ' on the record, and compel them to interplead. But as the proceedings by garnishment and interpleader were not allowed in any personal aption, except that of detinue, a form which has of late fallen much into disuse, no practical advantage has been derived from them in modem times. The only course now resorted to for the relief of a person sued or in danger of being sued by several claimants, is that of filing a bill to compel the parties by the authority of a court of equity to interplead at law. Thus a distinct suit is instituted in a court which has no cognizance of the legal remedy of the parties, for the purpose of obtaining an order with reference to proceedings at law.' The report then recommended a new summary proceed- ing, and suggested what in substance is the enactment which became law in England on the 20th October, 1831, and which appears in the statute book of 1 & 2 William IV. as chapter 58.** England and Ireland.— The English Act of 1831 allowed relief, only to a person who had been sued by one of the claimants, and to sheriffs and like officers. In 1860 the Common Law Procedure Act made several important changes in the principles and procedure, the most import- ant being that the titles of the claimants need no longer be connected," When the English Judicature Practice was codified in 1873, a rule was framed which made the proce- dure and practice of interpleader used by courts of com- mon law under the Acts of 1831 and 1860 applicable to all the courts.** As this remedy could only be used by de- fendants, it was provided in the Judicature Act itself, that if a debtor, trustee, or other person liable in respect of a debt or chose in action had notice that an assignment thereof in writing was disputed by the assignor, or any one claiming under him, or of any opposing and conflicting claims to such debt or chose in action, he might call upon "'^T^'v^: S^^^iT- "• ^'= "" ""^ ■" ^'*^""'' "Order I., Rule 2 of 1875. r INTKODUCTOBY. 15 the seyeral claimants to interpleatj " In 1883 the rule of 1875 wuB repealed, and a new code ei: bodj-ing in substance all the previous Acts was adoptrd, except that it foUowed the Chancery practice and allowed relief whether the appU- cant had been sued or not.«» Although this Code is wide enough to cover all cases proper for interpleader, the section of the Judicature Act in relief of debtors and trus- tees 18 still retained. • J'i'A^"^"'^ Interpleader Act was adopted in Ireland in 1846, and the present English code in 1891 In tiie ITnited Statea—In the United States, provisions founded on the English Act of 1831 were soon adopted: in Pennsylvania m 1836; and in New York in 1851. The fol- lowing other States and Territories have also provisions for interpleader in their statute books: Alabama, Alaska, Ar- kansas, California, Colorado, Connecticut, Delaware Geor- gia, Hawaiian Islands, Idaho, Indiana, Indian Territory, Iowa, Kansas, Massachusetts, Minnesota, Mississippi, Mon- tana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota Tennessee, Utah, Vermont, Virginia, Washington, West Vir- gim& WiMonsin, and Wyoming. None of the provisions in the United States are as comprehensive as the present Eng- ish Bules but all of them are based upon the par at Eng- iJSD Act.** ° Li C«i«d«.— In Canada interpleader statutes providing for the relief of stakeholders and sheriffs, found^ on the Enghsh Act of 1831, are in force, in Nova Scotia, New Wh w V^"""'! ^•^''""^ ^"'"^^' ^"^t*""' Manitoba, the Aorth-West Terntones and British Columbia. Quebec is the only exception. Newfoundland has also a similar statute. Ontario has been more enterprising than any other section of the worid, in enacting interpleader provision,; the Enghsh Act was copied in 1843, when Ontario was part of the Provmce of Canada, and in seventeen different years r^.* ^ ^^^- ^- «c. »■ « (8). -Order LV'I. of the Bales of 1888. " Bee Appendix. 16 THE LAW or IimDtPLEADER. II J, '■!■ Bince, additions or amendments or consolidations have been placed upon the statute books.*' Aaatraliaa eokaias.— In Australia interpleader statutes are in force in Victoria, New South Wales, Queensland, and also in Ner Zealand, all founded on the English Act of 1831. * Other jwirfietioM.— The English statute has also been adopted in India, and in the Bermuda Islands, while a some- what similar provision is found in the Code of Japan. How itetnte fnt regwdad.— When the Interpleader Act was adopted in England, it was at first looked upon as a substitute for the mode of obtaining relief by a bill in equity." In considering whether or not interpleader should be granted, the courts of law -ere guided by the principles and practice which governed in the court of Chancery upon a bill of interpleader." The Interpleader Codes adopted in the United States are also regarded in the same way. Thus it has been said in New York State that the Code provision is only in- tended to extend the powers formerly possessed by courts of equity to the legal actions designated by the Code, and" Its application has been confined to the ckss of cases in which a bill of interpleader would have accomplished the same end." The design of the Code is not to introduce new cases, but merely to provide a summary proceeding when interpleader is proper.** The right of a defendant under the New York Code to compel rival claimants to be brought into an action by motion, depends upon the same principles as the right " See Appendix. B.rZ'S'^ c'S^'mi ^t^^' ^ H- * ^- 277; Llnd«>y r. «. "Hornby v. Gordon (1862). 9 Bosw. N. Y 656- PnatAt v KTt?'1S^' ^ ?T- ^'- 3- «^' HoWe r. oS (IsS) ^ V TO. li-T; '^' ^'n^^^k*' ^- Mutual Life (1806). 12 App. Dlv. N aSffl), 01 MiH. 851; Coleman ▼. Chamber. (1960). 29 So. R. 68 (Ala3 " Delancy r. Murphy (1881), 24 Hun. N. T. BOS 'NTBODCCTOBT. ,- 17 to iMintiiin a biU or action of interpleader" tl.« « • • . which govern both are alike" and IhT ' •*? Pf^^P'^ it«df, nor a decision nnder'i vrLl^VfV^' ^"^^ governs a bill of inten^eader^o^^ Jh '' ?** ""^'^ statutory proceeding" '^'^" *^® «^^« ^ the -^'S^rann^Jer^^.SSlrS^-^^^^^ ^'^^ -le of not the like circumatance. hiv! T .!^^°*'^ ''''"^^ ^^er law should not be ^ett,^r^\^l^. T ^ *^** ^^^^^s of bjU., to one !, tte cuSZ XXX S L""""',"- of property. In IfiflO +i,« ,•! • ,T;°°®°"y of the question K. be .d,e™. „d md^Senl." ' '"°"' *' ''^' Statute does not oust eanitable iimi..i. wu I» iZ i resorted to on the fact, utaled •« tbe .Pa^^^Zril^JerbyrfS^^f^ 1^^ *^"* „ -Tanner v. BnroDMn S /1J?>?''- ^^ Y- «». Hay« (1863.. l H TS%?8. Ll^^^' i^ »• ^ »*• 261; B«t v ^854) 9 Hoi V^^m" i^®'^' 8 J"- N. 8. 867- Beck v «* k .' Nation., r. PI«tte (1884). M S; App'^S^* t 18 THE LAW OF IMTIRFLKAOEB 1 :';^^ I; Where courts of law and eqmty are fused, and «qmi-> able principles are followed in the consolidated court, the rule is clear that interpleader statutes are not at all to limit or affect the equitable jurisdiction of the court to entertain an interpleader suit or action. Such statutes merely furnish another special, cumulative and concurrent remedy, summary in its operation, and they do not alter the settled doctrines concerning interpleader. The statu- tory remedy is a mere substitution for the equitable remedy, in the kinds of actions to which it applies.** Wlien ftatate mutt b« used. — ^It must be remembered, however, that because the statutory provision is summary and convenient, whenever the applicant can avail himself of it, he will not be allowed to impose larger costs upon the fund or subject matter, by a bill or an action of inter- pleader.** Kodem action of intorpleader. — Where the statutory provisions governing interpleader are so extensive as to practically cover all cases in which interpleader is allowed in modem times, as is the case in England, Ontario and some other jurisdictions, it would seem that an action of interpleader is hardly necessary. It is to be noted, however, that there is nothing in any of the existing interpleader statutes forbidding an action of interpleader. It has been held in Ontario, in a sheriff's case, that if there is no sum- mary remedy in any particular case, the court may allow him to avail himself of the old equitable jurisdiction and permit him to bring an action of interpleader.** Under many Interpleaaer Codes it is only where he has become a defendant in an action, that a stakeholder can make use of the summary statutory remedy, and when that is the case, and he is threatened by rival claimants who do •• Beck T. Stephani a864), How. N. Y. 103: Pattenwn v. Perry (1867), 14 How. N. Y. 605; CtoBln v. Cronin (1886), 8 How. Pr. N. Y. 184; Du Boi« v. Union (1885), 80 Hun. N. Y. 382: Brock v. Houthem Railway (1805), 44 8. C. 444: Board of Education v. ScoTille (1874), 13 Kan. 17. "Pattenwn v. Perry (1867), 14 How. N. Y. 606; McKay v. Draper (18©), 27 N. Y. 256; Hendensofi v. Watson (1876), 23 Grant 355 'Ont). • Standard v. Hughes (1886), 11 Out. Pr. 220. IlfTBOOVCrORT. .^ not roe, the rale is cletr, that he can »nH ™« * WMrt to a modern «^Ma« * '?««•"» "nd miwt necwgarily bill of inter^^Se? in equity H'^';''''' """^'^ ^« » «lief cannot r^'^de," Ste^^^l ^-^^ ^^- have been granted in an L.^i ^ ' °* ''^*''' »* *««W Cbancerr. "»terpleading suit in a court of tor, who h^ been gu^'Jwh '""'^^i''^^ ^^at an execu- from whom thTlelf ^L sL'f^'Z'i * ''^'''' ^^ wife, could not ^^rflCZ^ ^Tt^' ^'l^ ^^«^«^-'» action was not covered by t^e Code ^ ""*"'" °' *^^ interpleader suit to priced an^l Th« court allowed the ca*e does not fall wi^Jr^^h ° / '*' ^""'^ '"'^•' '^he The Code was inten^X^ i^^^^^^ '^^ ^o,e. tice, and as directing the p,^ S„ J. ^'T'^ ^"•'- of cases named bnt it wH I f ^ Particular classes whole subiectiu:r\nrrpr rtttaVr^ ^ mon understanding of the SnT A^ ***^° *^^ ''**™- enactment of the Code *L.^ ^"^ ''"' «^«'' ""^^ the pleader stUl sS^iv^^i *'** '^' ^**""«^'« ««««» of inter- rtai.%'f^:s;^rte?:j:' ^'^r-' ^^°°«^^-°^^ action of interpleatT'intrS^'eJ^r^ ^^"^""^ ^^' ^ Pleader, nS^thsU'di^r^e ZT^JT''''^ ^J -*- :f^Sft:irrs;i~^^^^^ the discrein ofThcoSfj!^^^^^ °^ ^^«' '« ''l-y^ i« only remedy strict of „.ht^ '' '""'^T' *^'''^^'^' '^^' '^- of several claimant of fh' slTdl":'.'?"^ ^^ '"^- claims no interest him-lir T "*' ''"^y* «°?5^^-,r"s;.^^' « ^•'- •^'"•- '^' «'""« - B^- ir. R. Bq. 221; McNeil v. Amts (1876), 120 BIbm. 481: or where both claJmnnU content. Belbee t. Belbe. a821). 6 M.d^ 28 ^Badean v. Wee 0844), 1 gand. N. Y. 270. 3 Be.^"m • "" ^®*^' ^ ^'- ^- ^ 28; Jew v. Wood (1841). "Townley v. Deare 0880), 8 Beav. 218. StepbeuR T. Callanan (1828), 12 Price 168. 12 Abb! P?.1i.\^^ ^^^^' * ''• ="• «• 2«: S*«m.D V. Wright. « w^'ll"' V. Roberta (1894). 80 Fed. Rep. 8Sa BlUott T. KmpstoB (1863), 15 Ir. Ch. R. 120. 26 THE LAW OP INTKBPLEADKB. 4 1 Nor can a tenant interplead where no legal steps by dis- trew or otherwise hare been taken.^* T«BUit under iBterplMdw AbU.— A tenant may inter- plead his laudlord with a stranger, under the statutory pro- vision which aUowB relief, although the titles of the claim- ants have not a common origin, but are adverse to and independent of one another." iMdlmrd.— A landlord has been allowed to interplead, when, at the expiration of the lease, adverse claims were made upon him for the value of the tenant right, a third party claiming that he had purchased the right from the tenant.** , , Owaer of Und.— The owner of land may interplead, when conflicting claims are made in respect of a rent charge upon the estate, and he cannot tell to which claimant he should pay the rent." Mortgagor.— A mortgagor of land will be allowed relief by interpleader, when adverse claims are made upon him for the mortgage moneys, the debt being claimed by one person alleging himself to be the original mortgagee, and by anotber who claims to be the assignee of the mortgage and has in his possession the mortgage deed.»» The remedy of a mortgagor in this connection is sometimes said to be more in the nature of interpleader, than interpleader •imply.** Mortgagee.— When a mortgagee proceeds to a sale of the mortgaged premises under the power contained in his security, and a surplus remains in his hands after payment of his own claim, and there are adverse claims to such surplus he may interplead." A mortgagee may also inter- !r5?^''^^ ^- '*'"'*" <1T44), Bidg«w 2fl0. fl884»^P.V'*i'^^"' ^"'•J'Ont- Kale 1106; Schlnter r. Haney V. yyl'^:am!'SSi..T'^'^ '''^'' ' ^^ '""• "^= ^'^" -Tauton t. QnA (1809). 4 Abb. App. N. Y. 858; see alw> Van Loan T. Bqalrw aSSO). 28 Abb. N. C. N. T. m O'Donnell (18g»i. 16 B. I. 417; and aee chapter XV. Weatera Oaaada t. Conrt aSTT). 25 Grant. Ont., 161. iHi APPUCAirr. 27 plead, vhere a portion of the loan is held back to satisfy a mechanics' lien, and the balance is also claimed by an execution creditor of the mortgagor's predecessor in title.** Batepajtt.— A ratepayer who is taxed in two different places for the same real or personal property, which is only liable to be taxed once, and when it is doubtful to which place the right to tax belongs, may interplead, and compel the tax collectors to settle the right between themselveb." Ho cannot interplead, however, when the "tax claimed by one collector is double that demanded by the other, be- cause he then has an interest in paying the lesser sum.** The remedy of a taxpayer under such circumstances, is, in some cases, said to be more in the nature of interpleader." Exeonton and •dmiaiitraton.— An executor has such an interest in property which comes to his hands as ex- ecutor, and for which he is sued by a person claiming by title paramount to that of his testator, as precludes him from calling on parties claiming under the will to inter- plead with such stranger. He cannot ask legatees, whose interest, it is his duty to protect, to assume the burdens of Utigation which his office of executor imposes on him.»» The same rule appUes to an administrator,*' and has been applied where the adverse claims were by the next of kin and an assignee.** The proper course, for an executor or au administrator, is to apply to the court for directions.** There are cases, however, in which an executor or an adnunistrator may obtain reUef by way of interpleader. Thus an executor may interplead, when the description of o legatee is in some respects applicable to different per- sons, each of whom claim the legacy ;*» where a debt is " £"•!"* J- ''^. <****>• ^ Mo. App. 433. (1884) aJL"? N v"*«Si*^L? ^■'•^- ^- ^'' 'ThomwD T. EbbeU ■Bin. T. Watoon (1882), S» UIm. 619. '* ** ^ " *«• ^>- -^I?" T. Warwn aSOB). 101 Mm. tMM. Mom T. Stearaa 0881). 181 M«m. 889. THE LAW OF INTERPLEADKR. :i' It i.tfj :( i' .:; Fi 'k: claimed by both the executor and the tnutee of t^e tes- tator's deceased creditor ;•• or where the fund is claimed by a bank in whose favour the beneficiary has drawn on the ezvcutor, and by the solicitor for the beneficiary who has established the fund and claimed a lien for his costs and disbursements.** So, the executor of a judgment debtor has been allowed relief, when the debt was claimed by three parties, an assignee of the debt, the judgment creditor's assignee in insolvency, and the solicitor of the judgment creditor who claimed a lien for costs;** the administration of a deceased mortgagor, where 4he mortgage moneys were claimed by a creditor of the mortgagee and by the latter's assignee;** an administrator, where the moneys in his hands were claimed by the heir and by a purchaser from the heir;** «in administrator with the will annexed, where there was a de- ficiency of asse'-. and claims were made by devisees and legatees ;*» while an executor sued by a creditor of a lega- tee, and also subjected to a demand from the legatee's wife has been allowed relief.** An executor, cannot however, interplead, until he has proved the will, and thus made himself a debtor by stand- ing in the place of his testator by virtue of the probate.** An administrator, who is also heir,** or an executor, who is also the residuary legatee, are as such, both inter- ested in the fund, and cannot have interpleader.** An executor who has brought in his accounts and ob- tained an order directing how he is to distribute the funds, cannot then obtain relief by interpleader, upon a party not in the accounts claiming, the executor having known of "WrlKht V. Ward (1827). 4 Rnu. 215. "JarrlB r. Benedict (1881), 37 N. Y. gt. Repr. 588: Davta v. Benedict (1891). 20 Civ. Pro. N, Y. 286. "Jones V. Thomat (1854), 4 Myl. & Cr. 18a • "Cannon r. Kinney (1848), 1 8m. & M. SOS (Mi«k). "SeMions V. Manafield (1864), 88 Ga. 9 Bnplt ZTS'^KJ'J^^*'^^ 'l*^)' 10* Maafc 100. »t'.?l?.'**"if' ®"* ^- ^^^ <1*»)' M N. B. 486 (Ohio). " Mitcliell r. Smart (1747). 8 Atk. flOfl. ** Lincoln v. BnUand a862). 24 Yt. 689. " Ladd V. GhaM (1808), 166 Maas. 417. THB APPUCANT. 89 the claimant but neglected to bring him into the Surro- gate Court.** An administrator who has been ordered by a probate Court to pay over the estate to the beneficiaries entitled, cannot under ordinary circumstances maintain interpleader against those claiming the benefit of the order. The order is conclusive, unless appealed from. If it is general, not naming the distributees, the administrator^ may obtain a specific order.** '' Attontfj. — A solicitor or an attorney, may in some in- stances interplead, when moneys collected for a cUent, or held for him, are cUimed adversely.** A soUcitor, who was employed by one member of a firm, after its dissolution, to coUect a debt owing to the firm, was allowed relief when the moneys coUected were chumed adversely by the former partners.** Agent in equity.— It is a well defined rule in equity, that an agent cannot call upon his principle to interplead with a stranger, that is with a person claiming by title alleged to be paramount to that of the principal, and this is founded upon the doctrine that interpleader will not lie, when the claims are adverse and independent of one an- other, and for the further reason, that rights and liabiU- ties exist between such parties independent of the title to the property.** But if the principal has created a subse- quent interest in some other person, the agent may main- tain a bill of interpleader, because then the same debt or duty is claimed.*^ « Baker v. "Brown (1882). 'H Uun. 827. -FreelMid T. WllBon (18K,>. 18 Mo. 880. "Perkins t. Trippe (1889), 40 Oa! 225. KnowSST]^? I'-^^^^J^^^' 2 MyL ft 0. 1: Nlckotaon v. «.nowIet (1820), 6 Mad. 47; Watta t. Hammond (18S5) 8 W H 819 (cSn). ' McPadden v. Bwinerton aWO). S9 Pac. 816 80 THB LAW or IMTERPLKADKB. Aff«t vid« iaUnimdtg AeL—An agent may, how- ever, interplead his principal and a stranger, under the statutory provision, which allows relief although the titles of the claimants have not a common origin, but are adverse and independent of one another.** CSairian aad bailaaa. — Common carriers and bailees of goods and chattels cannot as a general rule interplead in equity," unless the claims are connected or have a common origin,** but can under the English practice. It has been said, that the remedy is for their protection against actions, which may be brought or threatened by rival claimants, wid does not extend to goods in the possession of a car- rier, which have been seized by an officer of the law under legal process.*^ A railway company, from which goods are claimed by a person holding the bill of lading, and who is other than the person named in the bill, may have relief when the person named in the bill also claims.** In Scotland a railway company may have similar relief by the process of multiplepoinding.** Ship oaptaim.— The captain of a ship, may in some cases have relief by interpleader, when two parties claim ad- versely under the bill of lading.** HariNnor e' » ^*^ «28: McGatr v. Adam. (185.), 14 Ko». Pr. N. ¥461. Coatra Bdmylcr v. Hargona (1866). UabUltr "'^-^^ See nnder beading Doctrine of Independent S »,« S^- ^ ^^- ^'^'' McPadden y. Swinerton (1900), 59 Fac. 816 (Oregon). " Merrbanta' Banic t. Petera a884), 1 Man. 872. Z^"!^i »i!?^*'^ BaUway Company (189eS), 14 S C. 444. P.. 97 '' ^' ^^'**' ^*®®*** ^'"* **' ''•^**"' " son (1819), 8 Madd. Index 364. " Belfast T. Lowther (1864), 18 Ir. Cb. B. 34. THE APPUCAirr. 31 , .7 — HT"^ '•*^«' fio« distinctioii hu been drawn m interpleader between . private .nd . public wiu^ ^ZTint r^ 1^ *^* *^' P"^**« wa'rehou^^ ««^d not interpl^d, beo.n«, he w«i the .gent of the prin- in . puWic bonded warehouse the person holdinV wag might then be maintained against contending claimants.^ to^^cJJ^t"^''''"'' '^'" ^*'°*^*^°° ^^" ^«ld not .r«f ^^"•"r^; auctioneer in making a sale, is consid- ered the agent of both the vendor and the purchaser, and T J* ^^'°«« • "»"« depositary or stakeholder of that part of the purchase money which by the conditions of 8«le 18 required to be paid down. If the contract fails, and able to decide between them, is entitled to reUef by inter- pleader to compel them to adjust the matter between them- selves. Formerly, an auctioneer could not interplead, n his .^k'!***" ^ con^ni^ion out of the moneys nave his charges as well.** au,^^~t *^? '^*'* ordinarily compel his cestui quetruri to interplead with another," because he has a duty to perform and cannot be said to be disinterested, puted «*'*°' " '^ig'^^^t by his cestui que trust is dis- In Scots law the process of multiplepoindine is the common mode by which trustees seek to obta^judicul exoneration. Accordingly a trustee holding an estate ^ "vVm^I ^- ^i*?*«n 0887). 2 Myl. ft c. 1. 08^)! 'l^ Sto.'S'SrSS.'" ^*"^' ^ "•'''^ 280: Mitchell r. Hayne "Beat T. k^«7M (1888), 1 H. 4b O 718. :»1^- F-k (1861). 2 Ptai. w'S .. 58 W.* »7 ^«- «=.«».-. » W. IBna.; R. 8. Ont 18W. o. 51. 82 THX LAW or IMTIRPLBADXR. W-'W ■'" -1' "■ pennitted to throw it into court by a maltiplepoinding vhere there are competing and hoalile cUumi, where the beneficiaries will not concur in granting a Talid discharge,** where there is a question as to the ralidity of the trust deed,** or where there has been great deky in winding up the estate.** The process is to be considered not merely one of mnltiplepoinding but also cf exoneration.** A debtor.— A debtor, as a general rule, can interplead when the debt owing by him is claimed by different per- sons, as by his creditor and his creditor's assignee in banic- ruptcy,*^ by his creditor's ordinary designee and his credi- tor's trustee in bankruptcy,** by his creditor's assignee and hie creditor's judgment creditor;** or by his judgment creditor and his judgment creditor's solicitor claiming a lien for his costs.'* But a debtor cannot maintain a bill of interpleader, in which he seeks to stay the action of the first claimant, until it can be determined, whether the second claimant owes the first a sum which can be applied on the debtor's liability;" nor can he interplead, as will be pointed out presently, when he has allowed his debt to ripen into a judgment against him, knowing all the while of another claimant." Where moneys payable by a judgment debtor in Scot- land for costs, were claimed by creditors of the judgment creditor and also by the law agent, who had recorered the judgment, mnltiplepoinding was held competent." «■ 7^^^'* 'T™'*" ▼• C>»»»k (1878), Ct of Bewioii. 6 R. 875; ?^ m ^Ji^^J'^^^^^' ^- <»' SeMlon, 7 B. 884; OgHry v. CheralUep (1874), Ct. of BeMion, 1 B. 666. "H»U T. Macdonald (1882), Ct. of SeMfon. 19 B. 567. "Dunbar t. Sinclair (1860), Ct of Seadon, 18 D. 54. "Blair y. Blair (1888), Ct. of Sesaion, 2 M. 284. For ewm when .« » ^■** ■** Mackenaie t. Sutheriand (1886), Ct. of RcMlon, ££ zu 233. "Lowndea T. Oomford a811), 18 Vea. Jnn. 286; eoMfr* Harlow T. Crowley (1818), 1 Buck. 278. "Be Hilton (1882), 67 L. T. 664. * Drake r. Wcodford (1890), 88 N. T. 8t Bep. 804. " V. Bolton (1811). 18 Vea. Jnn. 282. " Smith T. Kuhl (1874), 26 N. J. Bq. 88. "Collina T. Ancell (1887), 72 Cal. 618. " PoUart ▼ Galloway (1881), Ct of Sewion. 9 B. 21. Far relief refnaed, aee Mitchell v. Strachan (1880), Ct of Seaaion, 8 M. 154. THl Ai , JCAKT. 83 ment of, „ ^ cUimed by . third p.rty, .nch^^n "^ee of the judgment debtor- or^h^re ^he ^hiJS party i. . judgment creditor of the judgment debto^ Ta . ^ * " "*'* • defendant within such inter- ?^tn '^ "•'^ ''^'^ ' '"^"^ P»'*y <*»i^ the .ame 28 Abb. N. C N Y 4«i: 2J?: P*- W4: Pwtt t. MyewnSca? a8ro)fMM2;^°4J^P"S2ilh"**^'SP ^'-- W*5 Horton r Grant JO Ir. L. T. B. 167 ' *'*n»"ton ▼• Boralrd (1876) ^i^'ll'^Tl^l '''^'' « Q- B. D. B25: Providence v. 3^ Jlctori. r. Bethnne (1877), 23 Grant. Ont.. 568; 1 Ont. App. ^?SLi^: ^^S,*^ 0867). 22 Wta. 811. * *^ ***"• ' D^ T. Or^„, (1888). gl Mtai Ml. 84 THE LAW OF IMTERPLEAUER. A garnishee cannot call upon the attaching creditor to interplead with the execution debtor;** nor can a garnishee have relief when the third party is the attaching creditor's assignee in insolvency, and the claim might have been dis- posed of in the garnishment proceedings;** and when a statute prohibits the issuing of an injunction to stay attachment proceedings, a garnishee cannot call upon the attaching creditor to interplead with a third party claiming the debt, so that the attachment proceedings shall be stayed.** Where two sui^prs are seeking to recover from a general debtor, the one upon express contract, and the other upon garnishment, this has been held no sufficient identity of claims as contemplated by the Idaho Code.** Aooept«r of » UlL — The acceptor of a bill of exchange may obtain relief, when the debt secured by the bill is claimed by two different parties,** and so may the drawer.*^ Makar of a not*. — The maker of a promissory note is also entitled to protection when conflicting claims arise.** Xvnioipal oorporatioii. — A municipal corporation has been held entitled to relief by interpleader, where one-half of a fine for violation of a liquor law was claimed by two parties, each alleging that he had instituted the proceed- ings in which the fine had been imposed;** also, where dam- ages awarded for land taken by a corporation, were claimed " United State* t. Wiley (1864), 41 Barb. N. Y. 4T7. ■ Piclten T. Victoria (1879), 44 V. C. Q. B. 872. •• MeWhirtCT T. Halsted (188B). 24 Fed. Rep. tm, M.J. •• McOaoley r. Heart (180S), 84 Pac. Bep. 814. "Gibba ▼. Glbba a8B8). 6 W. R. 415; Gerhard t. Montagne (1888). 88 W. B. 76; Bcfan v. Bearle (I6m, Dowl. 106; Owntrm Baiter v. Bank of Anatralaaia (18S7). 1 C. B. N. 8. 815. For the name relief in Scotland, aee Agnew v. White (1806), Ct. of ScMrfon, 1 P. 1086. "Bell T. Hnnt (1848), 8 Barb. Oh. N. Y. 8»1. •* Van BaaUrli r. Roy (1858). 8 How. Pr. N. Y. 425; Howe ▼. Qifford (1878), 68 Barb. N. Y. 887; Rohrer t. Tnrrill (1880), 4 Minn. 407; Briant t. Reohtel T. Sheafer (1888), 117 Pa. St. 555; McGlintork t. Helberg (1807), 188 111. 884; Gill t. Cook (1888), 42 Vt. 140; Pool v. Lloyd aS48). 46 Maaa. fISR. ' Wolister V. Hall (1880). 60 N. H. 7. I THE APPUCANT. 3^ by two.- Where a balance due for bridge plans, was claimed by the engmeer who prepared them, !nd by hrBoSor who acted m ascertaining the amount, and iho cWme^ I hen^for h. co.t., a city corporation ;a. allowedt Tntr! pleader, against separate and adversa^ ^rtL u ^ title to moneys therein deposit^^^nJ C wheL tT money was deposited by thf ..m-„7- • !,' *"®*^®' the B^ZiJLli* ""^ ^ "•'' ^° accepted.*' ^lJtZ^2f ««P«y.-A safety deposit company may alHo interplead over property left in its Vustody.- ^ whe!^.ZrLT;fescr^ """^"^ '•" ^« -«-^ it i. liable.' ^ ' '^'"^ * ""^ «' ™o»«y 'or which B^nlp^r-eflJ I;JJ/^). 27 Hun. N. Y. 280; K^,„ , Board of CommlMloner. 0879) 67 iST^ v ^""""W Bank t. Branmnaiui y. BankVf SinSi ^i**>' *^ N. Y. gt. Ren oJ Bol. V. Unfcm Dtoe B^ti^ ¥17"*^** 1 Bob. C. C. N. Y &• S.* Saving. iBrtltntlon r. dSK fliSf^'J J^"" P«- 258: Rahwr; ♦lonal Bank 7. W#«* VibtJtM « ''^ N. J. Bq. 220- PiiT* v. Bank 0886). Vw.* Va^^JJb^-I^ ««; Dlcken^W^;. ES.ni; 3 Fed. R. Col. 185- w.JfV. I." '^'■* National Bank awST 'W Mich, aao Ro;.| 2rBk^*"iL*^^"«" B«nk " Al"y iSl* W?** ^'^ **• 2W>. Scotland t. Molr (1807), Ot a««?W£r ;^: rife"- "«»^- ^ «• '. »0T; Cadx .. Potter •'-.«*"k s"^^?^; «r"S' ?2^ '- ^«^' ^-" ^. Lo- T. Hnntlmrdon as^).'^",!!?^ » ^^Y. St. R.p. a09; Santlte Bacon T. American Sorety Co '(iSSa\ m a «. ' • "W»), 08 App. dIt. 100 N. Y. 86 THE LAW OF INTSBPLEADEB. Innxuiee oompaniM. — ^Insurance companies very fre- quently require protection, in respect of adverse claims, when insurance moneys become payable, and relief will be afforded to life," and fire •• insurance companies, as well as to fraternal orders and benefit societies." Lottery oompaity.^ — Lottery companies have been al- lowed relief, as where a lottery ticket which had won a prize was claimed by two persons.* A pwrelutMr. — A purchaser of goods may interplead, as where two personf, each claimed to be the vendor, and each claimed the price;* where a purchaser was sued by an assignee of the vendor, and alleged that he had been made a garnishee in a foreign attachment proceeding, at which time he had no notice of the assignment he was allowed to interplead.' Hotd fuait. — A guest at a hotel may interplead when payment of his bill is asked by two persons, each claiming to be owner of the hotel.* A biahep. — A bishop has been allowed relief by inter- pleader, where he had acted under a writ of fieri faciaa de bonis eeelmasticis.* Ohuroh olBoan. — In Scotland the officers of a church, whose school house had been expropriated by a railway company, were allowed to raise a mnltiplepoinding where lit m •> Bpriac T. Boath GaroUna Inaarance Oo. (1828), 8 Wheat U. 8. 868; Bmerick r. New York U(e (1878), 4a Md. 802; Clark v. Moeher (1887), 107 N. T. 118; Hartford Life aod Annnlty Ine. Vo. T. Uammiaga (UW7), 00 Neb. 286; HcKcniie r. Atna (1879). KaMwU Bq. Dec. Nova Scotia 846; Woolworth v. PhflUilz a888). 25 App. DiT. N. Y. 629. '■Paris ▼. Oilham (1818), Cooper p. BO; Sexton ▼. Home Fire luoraace Co. (1898), 54 N. T. SJB62. «• Feldnmn r. Grand liodge (1102). 46 N. T. St. Rep. 122; Order of the (Mden GroM r. Merrick (1895), 168 Mau. 874; SnlliTan t. Knifhto of Father Sialthew (1867,, 78 Mo. App. 43. »Y*tee V. Ttodale (1887). 8 Bd. Ch. N. Y. 71; Loalaiana ▼. Clark (1888). 16 Fed. Bep. (Lon.) 20. 'Johnaton v. Lewis (1867), 4 Abb. N. C. Pr. N. Y. 150; Tynan T. Cadenaa (1885), i How. Pr. N. S. N. Y. 78. • Barnes t. Brimberger (1000), 196 Pa. St. 128. • am T. Scropt aSBO), 2 Ir. Jur. O. S. 182. • Hammon r. Narin (1841). 1 Dowl. N. S. 851. THE APPUCANT. 87 the damages paid were claimed by a achool board and a kirk session.* u j^"**?*** '" cwditon.— An assignee for creditors, who had m his possession, a fund, the proceeds of goods sold by him, was aUowed relief by interpleader, where the money was claimed by the creditors, and by chattel mortgagees ' A elaimant eumot interpleiid.-An jietion of inter- pleader cannot be maintained, by one of several claimants of a fund m the hands of a third party, but only by such third person himself.* The debtor alone, and not the credi- tor, IS the proper party to institute proceedings.' If the ^n 1«* J"*,r^1 ^/ ' ^'^'°^""* *»' "*'°'^' " ^^^ party will not be allowed to intervene." Therefore where the lut bv fhf T """t ^°"r«°««^ ^y the applicant himself, Ln»fl* / »PP^«*°tJ« attorney, at the expense and for the benefit of one of the two claimants, after the other had recovered judgment in an action brought against the appli- pleaded the right of the first claimant, it was held that to allow interpleader to be maintained, would be to contra- vene the general principles of equity." The protection S w Z *^^^^^«' o* *»»« ^^> and if he does not invoke It for himself, another cannot do it for him. Courts of justice are not op«n, like tournaments, for knights errant to enter and tilt at pleaaure." A diffemt nae ia SiK»tl«id.-In Scot, law the practice in an action of muitiplepoinding is different, for there the process may be raised by a competing party in the name of !.!!!, ^T"' *'*'* " ' "^•^°»»'^t **y commence the proceeding in the name of the holder of the fund." More 0898? M ni, i}!?^ ^ ^'"- ^^' Wen««m r. Bloomer " An'S?'"' ».?**'"*" <1^)' 2T Mo. App. 271. r. Kub "pi" Im™^"~ i^^^'^ W. N. O. P.. IS: Good T. Briw^ 88 THE LAW OF IMTEBPLEADEB. H'A ;l4 . indulgence is accorded when the person in possession him* self applies.^* A terraiit. — A servant cannot have interpleader, when it is his master who is in danger, thus, where rival claim- ants took proceedings against a ship, in respect of goods which had heen on board, it was held that the captain could not interplead, because the proceedings were not against him but against the ship, the parties really requiring relief being the owners.** Agent for hia priaoipal. — An agent cannot institute proceedings on behalf of his principal, the latter must inter- plead himself." ' Owner ef Irailding in oonrae of erection. — The owner of a building, newly ertHsted, or in course of erection, may require rival claimants, such as the contractor, sub-con- tractor, or assignees, or creditors of these, to interplead, and to establish between themselves their demands against the moneys owing upon the building contract.** It has been held in Maryland, however, where some of the claimants were lienholders, and the owner admitted a balance that was not sufficient to pay them in full, that the owner could not maintain a bill of interpleader, be- cause the lien holders are not restricted to the amount due the contractor. They have no concern in the state of the account between these parties, they make their claim against the building, and they have a right to be paid by a sale of it. The effect of allowing interpleader, would be, to make the lien claimants accept the personal responsi- bility of the owner, in place of their security on the build- ing, and to compel them to determine by litigation with each other, the dividends which they should receive. This cannot be done.** " Fraser r. Wallace (1806). Ot. of Bewion. 20 R. 874. ^ Bablidch v. Rnaaell (1866). L. B. 2 Bq. 441. '• Hecbmer v. QiUlfan (1886). 28 W. Vi. 7S0. " T«*nton r. Heath (1862). 18 N. J. Bq. 22; Independent School Diatrict T. Manlis (1886). 106 Iowa 260; Lapeata v. Lettlert (18TO), 44 Atl. 780 (C!onn.); Bnaae ▼. Voaa, 18 Weekly Law Balletin 542 (Ohio): gcfaool nintrict r. Wentos (1875). 81 Mk-h. 80. "Ammendale r. Andenran (1886), 71 Md. 128. 1^ THE APPUCAirr. 39 Sefenduit in wpleriii.-A defendant in a replevin action cannot compel the plaintiff, and an adverse claimant of the property, to interplead, he must deliver it to the sheriff " Ttx ooUector.— When a tax collector has sold a prop- erty for arrears of taxes, and has a surplus which is claimed by the former owner and his mortgagee, he may protect himself by interpleading.*** In iMiidMiiu.-A person to whom a writ of mandamus 18 issued in England or Ontario, in respect of which he clamis no right or interest, or whose functions are merely minjBtenal, may in a case of difficulty, bring before the court all persons claiming any right or interest in or to the matter of the mandamus, and the court may make an Z^y'''' *° °^^"«'y interpleader application." 8ab«rtiiute judicial bflcer.._Subordinate judicial offi- cers, who are cloihed with the duty of distributing funds among certain beneficiaries in pursuance of a dwree or order, cannot have relief by interpleader, when claims are made conflicting with the direction under which they are acting Thus where a Master in Chancery had the cus- ^L A • '"'''^^ *'' *^^ P'^'^^ «' distributing it undCT a decree in partition, it was held that a bill of inter- pleader would not lie,.for the purpose of determining the rights of persons claiming to be assignees of a distributee." Ln^lTf '"''y' ^*«T»««^" ^«» refused to commissioners, were made to the proceeds after a sale." The reason for tion nf T J^T "^' °^ '''^ '° «^ving the direc- tion of the court, and so needs no protection. En^^A^I" '* Common Uw.-Courts of Common l^w, in England, always gave the sheriff, before there was iny im. ^'*"'* ^"'"' °"'*' »"•• 76 Of 1886: Out. R„le 1086 of (l«J)f mVb* M7Tli??*ri' ®* J'.'- ^P^- »«1' P'rt'o^' V. Moore "Mlchenor r. Llojrd (1868). 16 N. J. Eq. k 40 THE LAW OF INTERPLEAOEB. m I Interpleader Act, all the protection due him as a ^public officer, when he acted within the scope of his duty. As between the sheriff, a judgment creditor, and a third party claiming goods taken in execution, the court took care, iiia,*. the sheriff should not be made an instrument of try- ing at his own expense the validity of the claim. The course was, to interfere when he came promptly and had acted indifferently and equally between the parties, and to administer to him, all the equity which a court of equity would give upon a bill of interpleader, and this was uni- formly done upon motion.** The courts, on the suggestion of a reasonable dovbt, protected him, by enlarging the time for making his return, until the rights should be tried between the contending parties, or until one of them had given him a sufficient indemnity.** Thus, where a claim- ant sued the sheriff for trespass, and neither party would indemnify him, the court on the principle that a sheriff must not at his own expense fight the cause of the con- tending parties, stayed the proceedings until an indemnity should be given.** la Siiflidi Cowti of Equity.— In England, the oldest rule in equity was, that a sheriff was precluded from stat- ing a case of interpleader, when property taken in execu- tion was claimed by a stranger to the writ, because the sheriff had to admit, that as to some of the defendants he was a wrongdoer.** By 1886 however, the Master of the Rolls said : — I doubt, having reference to modem decisions, whether I should be disposed to fix the rule so tightly, as to say, that a sheriff cannot now file a bill of interpleader at all. But, it is clear, that he cannot do so until he has informed the judgment creditors of the adverse claim, and ascertained whether they will resist the claim, or give the *• BenuacoDi v. Fairbrother (1827), 7 B. A O., p. 881. - "Tidd'a C. L. Pr., 8th Bd. (1824). p. 10B7. "Bcavan t. Dawaon (1880), 6 Binir. 668. See alao Bolt y. Stanwar (1794), 2 Anatr. 566; King v. Bridgea (1817), 7 Taunt 294; Dewey v. White (1871), 65 N. Oar. 226. " SUngaley v. Bonlton (1818), 1 Vea. 4c B. 884; Onyon v. Waah- bonrne (1880). 14 Jor 497. THE APPUCANT. 41 goods np." Rnally, it became the practice in equity to allow the sheriff a bill of interpleader, when conflicting equitable claims were made to the property seized.** In Vaited Statai Couti. — In the United States, the equitable practice has been somewhat variable. Sometimes, following the early English Rule, the sheriff has been re- fused his bill." Under other conditions he has been held entitled to it, as where some of the defendants by unusual instructions have placed him in his difficulty;** or where, the claimants are two contending execution creditors, or an assignee in bankruptcy of the execution debtor and the ex- ecution creditor, because as to them he cannot be held a wrongdoer.** In one instance, he was allowed a bill, but without an injunction to stay any suit against him.** In other cases, he had been allowed his bill apparently as a matter of right** Britiih Stotntw.— The English Act of 1831, was the first interpleader statute for the relief of sheriffs, and other officers. It permitted the remedy, whenever goods taken or intended to be taken in execution, were the subject of claims by assignees of bankrupts, and other persons, not being the parties against whom the process issued. The original enactment is continued in the present English Rules, which provide, that relief by way of interpleader may be granted where the applicant is a sheriff or other officer charged with the execution of process, and claim is made to any money, goods, or chattels taken or intended to be Harding (1809), 6 Jnr. N. S. 116. «"*«2.V*'J"*S 0"'>«bu« Co. (1889), 4 Drew, p. 500; Child V. Mann 0867). L. R. 8 Bq. 808; Danlell'a Chy. Pr.. 4th Ed. (1871). D* 1410. ri840 8 Pal. N. Y. ffi9: Parker v. Barker (1880), 42 N. H. 78^5" (Pa") 691.' ^ ^' ^"^ ^'•- ^^'' ^^ ^- ^"^^ (IMS). 2 ^t »8haw v. Cheater (1834), 2 Ed. Ch. N. T. 405. (i8i)'?uS'M;I m.^""^' ** ''• """■ ^' ^'"»*"'''' '• ^*"P "Storra r. Payne (1810). 4 Hen. 4b M. (Va.) 806. t»^^ t?*".^- K'^hardaon a84«). 5 Ala. 849: Krine t. Oreen 42 THE LAW OF INTERPLEADER. !■ I m ,i ■■'1 ■1 Jfl (Fi! 4 i t: i taken in execution under any proceue, or to the proceeds dr value thereof, by any person other than the person against whom the process issued. A clause, essentiaUy similar, ap- pears m the interpleader statutes which are in force in Ire- hind and in other parts of the British Empire." ITiiited atatai Code^-In 1848, Pennsylvania adopted the second part of the English Act of 1831 for the relief of sheriffs, it has also been copied by Virginia and West A irgima; while the following States have enacted a less comprehensive provision, which allows a sheriff to inter- plead when he has been sued and is defendant in an action, namely, Arkansas, Indian Territory, Iowa, Kansas, Mis- sissippi, Nebraska, Ohio, OkUhoma and Wyoming. It has been held in Pennsylvania, that so long as a claim to the property exists and is undetermined, the sheriff has a right to interplead.** In the other American States, there are a variety of pro- visions by which a sheriff is as a rule only partially protected from his difficulties. In some he may empanel a jury to try the claimants' titles. Sometimes this is looked on as a judicial provision, sometimes not, while in many States the decision is not binding on the claimant. In other States, foUowing the practice in England before the inter- pleader Act, the sheriff may demand a bond of indemnity from the execution plaintiff, and if this is denied him he must take the risk of refusing to seize, or of abandoning the levy, if a seizure has been made. In others, there is a process by which the claimant intervenes and takes the goods, upon giving a bond, the sheriff dropping out, when the other parties without his presence determine the mat- ter between themselves. This is known as 'intervention,' and the claimant intervening is sometimes designated the interpleader, but more generally the intervenor." Meet of a tkwifPt ppoeeadinf.-The nature and effect Of a sheriff s proceeding were recently stated by Lord Esher " fine Appendix. "^"J- J""**"^' <**«>)• 186 P«- 8t. 188. THI APPUCANT. 43 in England, as foUows : A writ of fi. fa. is put in the hanils of the sheriif, directing him to geize the goods of a par- ticnlap person, the judgment debtor. He does seize goods m the possession of the judgment debtor. Thereupon, an- other person comes forward and ckims the goods as his That would put the sheriif in the position of having to determme whose the goods really are, whether they are the execution creditors or the claimants. But the legisla- ture provides, that the sheriff may come to, the court to determine who is right or wrong, the ctaimant or the 'ex- ecution creditor. As soon as the sheriff has got his inter- pleader order, he is protected. The court then has to per- form the duty of determining to whom the goods beloM" Other offlcar.-The words « sheriff or other officer " have been held to include, a lord of the manor,** a coroner*" when he has sherirs duties to perform; a receiver appointed by the court," as well as the sherirs under-sheriff, deputy sheriff, bailiff, or constable, when they respectively require protection." The Ontario Rule recites, that sheriff shall mean, a sheriff, coroner, elisor, or other officer.** if if Jf ■ w?* T"*** ^^^^^^ '»' fhe high sheriff, when nfl- ^'1*^',^^° ^^qw"^ protection,** and officers of inferior courts have been held not to be within the provi- sions of the Interpleader Act.*' nlv ?«"**,"/ •?keholder.-A sheriff may sometimes ap- orsSLhir/ "^^"l *^l«*«'*«*«'y P«>^io^ *or the relief under the special provision made for sheriffs. Thus a shenff was allowed to interplead where he had paid the execution creditor out of the proceeds of the levy, and stUl «3 ^ ?■?. T ^"^ ^- ^- ^'"'••"^« <1«83). 9 T. L. R. 012; Quinton v. Bntt (1S«0). 5 Ir. Jnr. N. S 180 24 0i'J."rt7l3J'""" ^'*^>' 2 ^- »• ^^ ^«"« V. Hew. am, •Linton V. Pollock. 6 C. C. Pa 248 -Ont. , Rule 1102 (C.) of 1^^*^- Freeman v. Mountcaehel (1849), 12 Ir L. R BBS - Moylan v. Rogers (1848). 10 Ir. L. R MO. THS LAW OP IMTERPLEADEH. had a balance in his hands, which both the execution credi- tor and the claimant claimed.** It has been said too, that if there is no summary remedy in any particular case, ^e court may allow the sheriff to avail himself of the old equit- able jurisdiction, and permit him to bring an action of inter- pleader.** Sharif a0t bmud to iaterplaad. — A sheriff is never bound to interplead under the Act, and a claimant cannot compel him to take the benefit of it,** because it was passed for the relief of the sheriff, not of the parties claiming the property seiae-J.** Where a sheriff has received instructions with the writ, that a daim, if made, will be contested, he is not bound to take interpleader proceedings immediately the claim ie made, without further instructions;** and where goods seized have been previously assigned by the execution debtor to a third person, as security for a debt, the sheriff is not bound to interplead, and thereby enable proceedings to be taken, but is at liberty to withdraw, though the value of the goods seized exceeds the sum secured by the assign- ment, and the debtor has an equity which is valuable.''* The sheriff's duty in such a case would be to sell the equity of redemption. Wkm aherifl rtfuad reliaf.— The granting of an issue is a matter of sound discretion, and the refusal of it, leaves the sheriff in the same position as if it had not been asked, nor does it affect the right of the claimant, who has no right to demand an issue.** The court, although refusing the sheriff's iq>plication, may yet in lieu thereof, enlarge the time for him to return T •T^'n^ ^' ^'*»'"* <**»>• 27 Ir. L. T. R. 184; Warnock t. Jf^.* Llf^l' *^ ''• K- C. L. 68; Walter v. Nicboteon (1888), « Dowl. 517; but aee Re Gould v. Hope (1888), 20 Ont. App. 847, In which the Coort was divided. " Standard v. Hnabes (1886), 11 Ont Pr. 220. -Harriaon v. Porater (1888), 4 Dowl. SSa (1860)!**^'?:'^ g" Im'-" ^''"^' ' ^"*- ^'- ''^•' «'*" '• ^-'' "McOee r. Aaderaon (1867), 6 Vict. L. B. (L.) 414. " Scarlett v. Hanson (1888), 12 Q. B. D. 213; Bngliah Order vm.. r. 12; Ont. Rnle 1112 of 1897. " Bain V. Fnnk 0869), 61 Pa. St. 185. THK APPUCAMT. 45 the writ,** and he is entitled to a reasonable time to make hiii return, after the dispoMl of hig application, before aa attachment can iaaue againat him." It has been held in Ire- land, that the Interpleader Act does not abolish the sheriff^s power of proceeding by writ of enqoiry." and he may still as before the interpleader acts apply to the court to enlarge the time for making his return. If he is unable to com- ply with the conditions entitling hiit* to claim relief by interpleader, or when the case is obviously not one for inter- pleader, his proper course is to apply for an enlargement of the time to return the writ** Be-int«Kpl«ader by ihariff.— A sheriff may re-interplead when a new claimant appears, and the issue will be amended, so that the new claimant may take part in the contest.*^ lUMfotMaB. of the Conrta.— The disposition of the courts, h now, to be more liberal in relieving the sheriff, than when the Interpleader Act was first enacted ;•• although he roust in numerous cases, not within the statute, take good advice and do the best he can.** One affaet of gheriTs Art.— It is worthy of note, that although the Interpleader Act was originaUy passed for the relief of sheriffs, it is now in a great measure used by credi- tors as a means of attacking conveyances or other transfers made by debtors to third parties. The creditor instructs a seiaure, in the face of an adverse claim, and the sheriff interpleads as a matter of course. The third party, if out of possession of the property, is forced to be plaintiff in an issue; and whether in possession or out of possession, has to give security for what may turn out to be his own goods. This is often a hardship, because, being unable to give i> ," ^?].?1? I-i'*"*" <*886). 4 DjwI. 800; 4 a. ft B. 12T- Cox t Balne (1845) 2 D. * L. 718: luac v. Spltebnry aSsiu^ lOBIng 98." "Barrett v. BnUer a860), 2 Ir. Jur. O. 8. 82. !r«»;» r^^"j 5'''^S.'';J""°« <18*^- ■* C. B. an: Holme, t MOTtie (1885). 4 A. A B. 127: 4 Dowl. 800. . « mw t. J^Brycft T. KInnee (1892). 14 Ont. Pr. 600. (1858)TH.';-^ti*;*& Wb'^J r ^- '''■' "*"* - ^^ "Bsteman v. Farnaworth aSOO), 20 L. J. Ex. »J5. 46 THK LAW QV DEB. a-jtMi wcnrity, and not desiring to hare hia goodi sol^. he will •ometime* make a aettlement although he ha* a good chum. It haa accordingly been held in Ontario, that an iaaue, directed on a aheriTa interpleader application between the claimant under a chattel mortgage from the debtor and the ezecation creditor, ia a proceeding taken to impeach the mortgage under the Act respecting Aasignmenta and Preferences by Insolrent Persons.** Whaa goods not in powaa riaa of d«M«r.— In OnUrio, if goods be in the possession of a third party chuming them, and not in the possession of the execution debtor, the sherilT w not obUged to seize, for the purpose of enabling an ex- ecution creditor 4o attack the claimant's title in an inter- pleader issue, unless he has first been furnished with in- structions in writing, specifying the goods in such a way that they can be identified, nor until he has been fur- nished with a bond, with two sureties, conditioned that the parties executing it will be liable for the costs and expenses which the sheriff or claimant may be put to, by the seiaure or subsequent dealings with the property.** In a recent English case where the sheriff entered the premises of the claimant and took away the goods by force the court refused in the interpleader order to stay the claim- ant's action for damages.' Appliflut aval eone to the crart pro«ptiy.-A person seelong rehef by mterpleader must come to the court promptly, either, immediately before or after proceedings have been taken against him. He must not deUy until a judgment or verdict has been obtained, for he wiU then bo too late.*« Nor can he have relief, when by his own r£*^ ▼. '*"^*"'» <1*2), 9 Out. App. 111. " R. 8. Ont (1887) c. 77. n. 22. De Coppett t. Baraett 0901), 21 T. L. B 278. Qi . r?!. w "• ^^J^' ^^^ ▼• Pattenwn (1888), 16 Grsnt (Ont) 01; Crickmore t. Fneaton (1871). 40 L. J. Chy 137- New Y«Vfc • Haw. (1878). 86 N. T. Sap. Ct. 372; Brown r wri.oi. Ttl^m & "870. «8 G«. 700; De Zouehe t. GarriHon (1891), 140 Pa. Bt S> Home Life Inanrance Co. v. Canlk 0897). 86 Md.lsbNitoSS,- THl APPUCAHT. " ^y hcbe. he hu pennittrf two claimg for the wne debt to interpleader nut would become in effect an appeal f. a a judgment already recovered.** ^^ iMtn for tUi nUe.--The rule requirinir diliir mr , a';;!'^ t""' *"f ^ "^^ '"•* .ntho^ty.Tntf:^:Lz : afforded to protect a party from the annoyanc. auleader order, from January until June, h^d £ nr ITZ 1Z^ r; • '^'*°'' ^^° delay;d for «tl' Clays was aUowed rehef, as it appeared that the rights of the chumants were not prejudiced by the delT«« A defendwit, who had twice obtained time to plead was af ZSrZ f '" ': i^te^Plead... Sometimes^^'^a pu^I costs of the action against him, and ^ denied iTUt 8 Uck. Jar. p». Ml "**• ^^' Kirtler t. Thonip«on (1885), Hod'^nl&^/O S?'IJ,/'|S^' " «""• v.. 116; Cheever r. ^McKtoney t. Kahn (1881), HOMlw 188 United State* t. Btum^j {18a0> 27 V v aT^ Barn-g v. BsEk of England (1838), 7 Dowl. 319. 48 THE I^W or IKTERPLSADEB. of the interpleader appUcation." After an interpleader order has been made and acquiesced in, it is then too late to moTe to dismiss it, on the ground that it was filed too late." Ezeeption to the rale.— In equily, however, a plaintiff is not bound to file his bill of interpleader, so long as a course of proceedings being taken by the different claim- ants is such, that if persevered in, will determine their respective rights, as between themselves, without the inter- vention of the Court of Chancery." DeUy •• to one ftuid.— If interpleader be asked as to two funds, with respect to one of which the plaintiff is not entitled to relief on account of having delayed his applica- tion too long, that is nonobjection to his right to interplead as to the other." Under Interpleiider Statntet. — The English Act of 1831»* provided, that the application should be made after declaration and before plea. The United States Code pro- visions use the same words, or words to the same effect, such u before answer, or before issue joined. It has been held in Ohio, that a defendant who has demurred is not too late." The present English Bules, and others founded upon them, provide that a defendant may apply at any time after service of the writ of summons.^' The general prin- ciple of diligence in interpleader requires, that the words 'at any time,' be construed a reasonable time. In a recent decision ii was said, *it is well known in the law, that ever since the statute of William IV. the one object of the law has been to make interpleader proceedings prompt.'*^ It must of course be borne in mind, that when a stake- holder has been sued, the action may have proceeded a con- siderable distance before the second claimant appears. " Ghurehlll T. Welah (1879), 4T Wta. 89. " Cooper T. JoDM (1867), 24 Ga. 474. " Sieveliini v. Behrens (1887), 2 Myl. ic Cp. 881 . «Flf°5 £l!** ""' ^*" <^**»)' 2 Md. Chy. 460. "1*2 Win. IV. c. 58, •. 1, !!£""^?/-J""'""""' 8 Weekly Law Bnlletlo 885 (Ohio). " KngUnb Order LVIL. Rule 6; Ontario Rnle 1108. " Macnair r. Andenafaaw (1891), 2 Q. B. 602; 85 L. T. B.. p. 293 THE APPUCAOT. ^ Under saoh circumBtances, it is impossible for the defendant L r ^ 't •; ^««' •**««. but he must do so proi^tlv o« soon as he has notice of the second chiim. ^ ^ ^' Hi-nt^ '"1^/j*' ' ^'^^' *h« ownership of which was ^ puted, was held entitled to interplead, though an appli A defendant cannot take issue with the nlaintiff «n^ at th^same time have the benefit of an interJklSefwJen a third party claims; the two are inconsistent and he mu«t elect between them, he cannot have both Tubwo bvZ* pLTS tt ct^r^^,:t^ ^riT^^ 81i«H# — -k requires ftim to come before answer." imii^v ,.< J 1 . '"'""i'**/' — A snenff must not be -^e in- late,., because 1^ is entitlXo 1 ' \'''' ^'^^ °«* *«» before coming to the c^„rt ^' ' ^7'^'%"'"^ *** ^°«1""« had received notice of a„ ^ J!? T ^'•^' f «»• «"«ng, he rendered it unsafe for Um^T^^ . '""' ^^^^ ^«»'«J !>*-« after more than tl^l ^ttla^r '^'' -* ^oo lat. a cii^Tor;rsXrh:*^ t^' ^"^ ^ -^^^ that special circumstances as eJ;7- J^ '^^"^ '«'y *>" any other purpose, he mu^t maSr"* •^;' ^'^''^' °' ^°' a«y on which he relierL if hVT'' '""'"^^* «^ '"^^ f«'^t« affidavit will not be allowed.* °°*' " supplemental When olaim b«for« ezeontioii — t/ » i • • the sheriff receive the exeoTa7 ^ "lu'"^ I' "^^^ ^^^^""^ seeing, and then inte^e^ hi L, ."'' '^'"^^ ^'^'^y ^" -Booth V. Pre.ton ^Zf', n ^^ " ""^ ^ '^'"«"'* C2 THE LAW OF INTERPLEADER. m ! i. AfUftTit of no coUauon ib equity. — In every case of a bill Cx interpleader^ the court, in order to prevent its b^^ made the instrument of delay, or of collusion with one of the defendants, as where a defendant mi^t for some rea- son prefer to have his claim passed upon by a court of equi^ rather than by a court of law, requires that an affidavit shall be made by the plaintiff, and be annexed t© the bill, that there is no collusion between him and ai^ of the defendants.' The practice requiring this is a very old one, and in New Jersey it has been said that the affi- davit is not a statutory requisite, nor is it required by any standing rule of court.* trader Interpleader Aoti. — Adopting the eqnitable practice the English^ Act of 1831 required the applicant to show by affidavit or otherwise, that he did not in any manner collude with the third party. The presott English, Canadian and Australian Bules provide, that the applicant must satisfy the court by affidavit or otherwise that he does not collude with any of the claimants,' and similar words are found in all the American State Codes." In Oregon, it has been suggested, that it is perhaps sufficient, if the facts showing that there has been no col- lusioD, appear by appropriate allegations in the plaintiff's complaint;^ while in Connecticut no affidavit negativing collusion is required.* Xeudnf of oolliuion. — Collusion does not necessarily * Errington v. The Attorney-General (1781), 1 Bonb. 808; Meteilf T. Herrey (17«), 1 Vet. Sen. 248; Warington v. Wheatatrae (1821), 1 Jacob, p. 206; Shaw v. Cheater (1884), 2 Bd. Ch. N. T. 405; Shaw T. Ckwtar (1840), 8 Paige N. Y. 880; Mount Holly t. Perree (1864). 17 N. J. Bq. 117; Tyna v. Buat (1868), 87 Oa. 574; Starling t. Brown (1870), 7 Bnah Ky. 164; Van Winkle v. Owen (1886). 64 N. J. Bq. 268; Snodgraas v. Bntler (1876), 64 Mias. 46; Whltnoy v. Cowan I1.S78), 66 Miaa. 626; Blue v. Watmn (1882), 50 Miss. 019; Ammen- dale r. Anderson (1889), 71 Md. 128. * Van Winkle v. Owen a8»6), 64 N. J. Bq. 258. * Order LVII., 1888, Rule 2; Ontario Rule 1104. *8o« Appendix. ' North Pacific Lumber Co. t. Lang (1805), 42 Pac. Rep. 'Nash V. Smith (1K87), « Conn. 421: Oonanniated r. Staples (1858), 28 Conn. 544. See also Vyvyan v. Vyryan '1801). 80 Bear. 65. THE APPLICANT. 53 entail anything morally wrong, nor need the word be ap- plied in an offenaive sense, although it has acquired a mean- mg gemmily Mnciated with something morally wrong. 6i*mg an indemnity ie not morally wrong, but such an act hM been held equivalent to collusion. If the applicant has bomd himself with one claimant to defeat the claim of the other, this can be nothing but colluding. The term means, liteally, playing the same game. The stakeholder must be imfmrtial.* But collusion, to which the applicant himself is not a p«rty, is no ground for refusing relief, a» where there had been collusion between the party to whose rights the ap- plicant succeeded and one of the claimants." LBpKtiality mnit contiime.— The position of a person seeking relief from conflicting claims, must be one of con- tinuous impartiality." He must be, at the time he comes to the court, and must continue to be entirely indifferent between the conflicting claimants.*' Exaaplet of oiOliuioii.— A party cannot be relieved, when he has deliberately chosen his side in the dispute, and has knowingly cast in his lot with one of the claim- ants; as, where a common carrier, holding goods for one person, at his request taarked them as being sold to a third party, and afterwards recognized the first person as being stiU the owner, and gave him a shipping bill." It cannot be allowed, that any person, whether he be officer or pri- vate citizen, may choose whom he will pay and secure pro- tection." When the applicant has made an agreement with one of the contending parties, to assist him in his endeavour to defeat the claim of the other, he has so far identified himself with the first party as to be guilty of collusion " Co. (1898), 8 Ueporti 380; *Murietfa v. South American Belelier v. Smith (1882), 9 Bing. 82. '• Wehle V. Bowery Barings Bank (187B), 8 J. & gn. N "Br'In'^ n '•/):;*'"";'°°iiS^>' 8» Po*^- (Oregon) 816, » M ii » ^^'""^ ^™°'' (1869), 20 V. C. C. P 9. "McDnflee v. Colilna (1887). 117 Ala. 487. Mnrietta v. South American Co. (1898), 5 R. 380 Y. 97. 54 THB LAW OF INTERPLEADEB. r! .-.-i i'.i A sheriff who give* part of the goods seiied to the chiinumt collude, with such person, «.d cannot have relief tri:' ^*«'P^«t'*'^-" « it appear, that a she^hL been acting throughout in the interests of the execution creditor, and against the interest of the cUimant, his an- phcation will be refused." ' ^ Where money was claimed from a partnership by a widow, and also by her husband's administrators, and it appeared that one of the administrators was also a membe of the partnership, it was held, that on account of the double relation, the firm could not interplead, as the per- Z}^)1 r ^''"^'' '^^ administrator could scarcely make oath, that in one capacity he was not in coUusion wii him- self in the other.»» No solicitor or coiimsel, for the plaintiff to a bill, can appear, or be heard, or be allowed to act for or on behTlf of any or either of the defendants.'* eifw %"^*f '?* "''^* "'''"' *^'* ^^ ^^^ "ot co"«de with either of the claimants, and his affidavit will be defective. If he denies collusion with only one" .l,n!lTf °' ^*!i'**-~^* ^ °°* necessary, that the affidavit ahould be actually annexed by sealing, tying, or other ^^hamcal means to the bill, it is suffident^^'t it is Id m \7l""""f. "^^^ ^' •'"^•" I^ i» "<> °^Je«tion to a b 1 is fll *^^f ^"^^ «; "o «°»«"on is sworn before the before. Nor is it necessary, that the plaintiff should .-ear that the bill is filed at his own expense, because in certain cases, another may bear the costs of uit ^thol^ ' ofaUrTt-H' Z " '**'" '""^«^^« *^« «^*- 01 a suit on a bill by his son.** "Bralne t. Hunt (1884), 2 Dowl. 891. ^Plynn v. Copney (1800). 18 Out. Pr 821 im.^X:i a)?'"''" ^''^^' ' ^"- M.„. 72; Ma... R„,e of Metcalf r. Hwrey (1740). 1 Ve.. S*n. 248. THE APPUCANT. 55 Sririwa afldaTit aUc-As a general rule, the affi- davit denying coUusion must be made by the person him- self, who M seeking reUef, so that an affidavit by Us solicitor IS not sufficient- but where a plaintiff was abroad, 2 the was aUowed.«» So, where a plaintiff was iU, a joint affidavit by his son a partner in his business, and by his solicitor deposii^to his state of health, and that the^re was no cof: lusion be^een them or the plaintiff and the defendants, was aUowed to be filed with the bill" And where tWe were several phuntiffs, residing in different parts of the country, who had contracted their business through the same agent in London, the court allowed a biU to ^ filed Zn,T ^"'' °' °° '''^"""^^ ^y ""''^ '^^'' tut did not grant the ordmary injunction to the hearing, but merely an mtenm order for a reasonable time, upok an under! .nJ^Tf^:^^ *''' ^^^' "»""* "^« *ffid«^it«> 'unless some satisfactory reason be given why all cannot joii " but an aflBdavit made by two plaintiffs out of four w^i heW anfficient, where the four were partners- and by one out of two under similar circumstances." A corporation cannot make an affidavit, it must be made be made by the company's solicitor if he can swear posi- Ani: "'f "'' """""'^y ^« °^^« '>y the sec "tiS .'. nn« ?K f. .; TP°"*^°° "^•^^"^ *»^« affidavit must de- pose, that to the best of his knowledge and belief the r-n^ pany does not collude, it is not suffi'cieut fttm oTy" that he does not collude." ' »Obbi T. Olbb. (1867). 5 W. R. 243. «S?"' ^- Reynold. (1867). 16 L. T N S 84 "SS:t'soS» S"??^' 7« ^W^- »«P ^3. Mich. ^ «re.t Southern ft We«tern Ry. y. Corry (1867). Ir. R. 1 Eq. "Blanold r. Aodland (1840), 11 Sim. 23. f-![; 56 THE LAW OF INTEBFIJUDER. M k ^ - i AMdtTit of ihtrif.— The EngUeh Interpleader A<»t of' 1831 did not provide that a sheriff ghonld negative collu- sion as was required by a stakeholder. It was accordingly held, that a sheriff in applying for reHef under the Act, need not deny collusion;" but it was pointed out, that he must not consider that he was at liberty to collude with the claimant." In Upper Canada, under a statute in the same words as the English Act," the sheriff was required to swear that he did not in any manner coUude with the clamiant, or with the plaintiff in the execution." The present English and Canadian Bules*^ require the sheriff to satisfy the court by affidavit or otherwise, that he does not collude»iwith any of the claimants. It has been held in England, that the sheriff need not as a general rule file an affidavit." If an indemnity hu b«en triKen.-After the English Inteipleader Act of 1831 became hw the question arose, whether a stakeholder was obliged to apply for an indem- mty, before seeking the protection afforded by this new statute. It was decided, that a stakeholder was not bound to apply for an indemnity, nor was he obliged to accept one If offered, although the claimant offering it should have an apparent title." But if a defendant had taken an in- demnity, and thus identified himself with one of the claim- ants, he could not then obtain relief under the Act.*" The rule was the same in equity, and a plaintiff who had token a security by way of indemnity from one of the de- fendants, instead of resting upon the indemnity of the court, could not maintain his bill of interpleader." The same questions arose with regard to interpleader by shfflriffs. It was decided that this officer might have the riS^/^Stei !i«^*^'°f" ^T^hJ^ ?«*'• **<' D>bbta. v. Green (1834), 8 Dowl. KO; Bond t. Woodhall /1885), 4 DoaI. 381. " HoNrtt T. iUken (1848). 12' Jnr!" W " 7 Viet. c. 80. «. 6. rr?''.*.*'i?'J' Whittle/ ami}. 8 U. O. L. J. O. 8. 18 ft 28. ^BtagHsh Order LVl/., «n|e 2 (ft); Ont. ttale im "Sliwker v. He||ertjr ajl||), 67 L. T. 27 i„jr^l'''"***^*j;'.^^'*« «^*^>' i H»J«e« 386; Bast and Wert India Co. V. LHtledaie (1848), 7 Hare 67. *TaeJi** «. Horria (1882), 1 Cr. ft M. 78, " StctiMm T. Hall (18g2), 1 Turner ft B. 80. TBE APPLICANT. 57 remedy although he had not applied fop an indemnity," or although he had been offered one and had refused it'« to rdiS*^ ^^^ * ^""^ **' indemnity waives his right A sheriff cannot be obliged by a claimant to take the benefit of the Act, even though such claimant offer to in- demnify the sheriff, if he will not sell under the execu- The objection that a stakeholder has, betaking an in- demnity from one of two rival claimants to property in his hands^sentitled himself to reUef under the Ceileade Acts, because he has identified himself with one, and must be t^en to collude with the claimant who gave the in- demnity, cannot be raised by that chiimant.*' Bejotting tffld»vit.-It is a rule in equity, that the plamt.fPs affidavit of no collusion in an ^terp^eadeV sui cannot be rebutted before the hearing, by aTounter IS- davit, and the plaintiff is entitled notwithstanding a counter affidavit may be filed, to the u«ual order for an Injunction, and for payment into court." If collusion is allejred the court wUl put the pUintiff upon an undertakinfas to fn 3. . T ^°'*"°'^'' ^^«'« **»« "»^'t ^«« not m regular form, the court, on suspicion of collusion, directed an inquiry into the circumstances, and the report confirm- ing the fraud, the bill was dismissed with coste« avpllf'fwl"*'.'"*^*''' *" ^««"«' »« *° the plaintirs averment that he is a disinterested stakeholder, and such ;rserreii:f r ' '^' ''- ^^^^^«« --^ ^* *^« ^-^^T^ Popi'ojTiSg. Ib5"oK ' «• * ^- ^'■- ^-» - Wins V. "^*y ^- S^'^npney (1834). 2 Dowl. 484. r n n T«,^°''*' <^836). 4 Dowl. 005; Re Corb«.tt dSSi^ « it Harrison v. Poreter (1886). 4 Dowl. 658 ;; Thompson v. Wright (1884). 18 a 1^1) 032 AndeiSnT814).'2 ?"eSTB^ 4Tm' T"' '^\''''^- «»— » -• ^Manby T. Bobinwn (1869), L. B. 4 Chy Add 347 WllH«m« V. Matthewi (1880). 47 N. J. Bq. 10 «. 08 THl LAW OF INTntPLEADXR. .m«tir«, ^ ,^ ^*^ commenced to reco^r the clerk .tiU m the employ of the defendant. m.de cuL, L^I ; *^* *^* ^"^ ^^ jurisdiction to refuae reUef notwithatjmding the affidavit of no collusion, Z S come to the conclusion that there had been collwion" .l«n!r" 'l? "^^T** ^ «•*— The want of an affidavit denying coUnaion is a ground of demurrer, and may be also taken advantage of by a defendant at the hearing." T^e plaintiff is not required, on his motion for an in^c- S.?.ffi 1 l"^ '®- "* ^'"^^"^ *^« statements in his bill, the affidavit denymg collusion is the only one required." EW ^ depositions taken showing that an agent of the r^ffil^^tT. "" ^ '"°'* ^^*^^' '^^ *^««^de such an affidavit. The only way to correct such an error, is to obtain leave to amend the bill, and leave being giinted, he amendment am be made, either by filing a new Su with icx^T^r '*^^\°' ^y ^8 an affidavit, either an- If the defendante do not object to the fact that the usual affidavit of no collusion is not attached to the bill of inter- pleader, it has been held that the court is not bound to h^a T:i "* '^' "^'" ^^ Massachusetts it has C is annexed i™^'' '' ^''^^ "° *®^»"t of no collusion th.^T*^?*"^** *^*»^ nnder-di«riir.-In England, the sheriff has in some cases been refused relief, bSiause ^ « Burritt v. Pr*M PublLhlng Co. (1898). 25 App. nir. 141 (18??: iem a^' "^' °*»'- '^'« i"- Co- of n. y. t. c.^ T r:|^K35T«^^^^ ; Wat's? ^^«^>' "Cobb T. Bice (1881). 180 Maw. Si. TBM APPUCAMT. gg of aUeged iniproprietieB between the under.8h<»riff -„^ of the parties. Where the chununtClicitor^^^ Z the -der.henff ho w., hi. p.^^ ^0^ ^x^^St^ he wnt, by which the execution of the writ w». aI* !I interpleader was refused. It was said fhrl ^ I"*'**' have no interest on either sidl" p , / ''**"? °°«^* **» where the underH.LSff was th. . ! ""^ "'"" ""^"^^ Kuuci^uenn was the execution cr(>difni> «^a also where he was the partner in business nf^l' « creditor." ousmess oMhe execution Afterwards the court became more lih««.i ♦« *u i. — and it was pointed out in ml ZZ Ih ^ '^^"^' cases in wUch grZer^trio^ "'" ''""" ^">« «1«J sher^^was atWv ; JJ *^! """' ^'''' ^^^ *he under- 0«Uri. tut It doe. J^m^.n/di5^°,^f '" escrow inh^ a r j • *°" ** c*^e to him in D. & r^S; li t7. S.TlJ '*"''• ^^^ «- - ^^^ (1845). . »n^*" ^- Bower 0888). 4'dow1 605. (18«8). 17 Wah*^. <^*»>' *«2 Mm.. 179; Walker v. Bamberger ■MMunoN mr ooir (ANSI and BO TEST CHMTT No. 3) 1.0 1.1 lit IM lit u 125 IM 1.25 lu 1m jA /PPUS2 M/C3E Ine 1MM kWn SliMt NMlMMVa fWP Tvfil i4 ''■'^- 220= Shaw v*(Wer SwO)^8'°P„,^ Ct. "872^ ^"'' * ^""*" ^^' *^**- ""■ ^"^^ (1878). 35 X. Y. Snp. P. 40.°*^"" ^' *^**'**"' ^^^^' 1 Q- B. 85 and 505; 63 L. J. Q. B.. THK APPLICANT. gj the person seeking relief has placed himself i„ his oun difficulty interpleader will not lie.«« He must show that 1„1 r 7 '°"^''"°^ '^"^^ ^«^'« "risen.-. On thl ground rehef was refused to a purchaser of goods y^hl accepted a bill of exchange and sent it through fhe pj o h.s vendor in payment, with a blank for the drawerVname the vendor claiming the price of his goods, and I S party payment of the bill which had come to hTm in due course;- so, a person liable for payment of matTri 1 and ^h.ch of the claimants he had contracted;" whileT^nk was refused interpleader, when it could no say whether a ItTA"' '""'' ''^ ^'^''' ^^«'« «r after InlttachTng owner to interplead respcctinir it •" nnr /.«», - fh^ocu iu ffood faith h„f *-„ i^^""K "» nor, can a person who, also claiming the same property" A -hli* . P"^^ nln«.i —u i_ . F^wperiy. A sheriff cannot inter. Ill 62 THE LAW OF INTERPLEADER. JU Km Ho rdief if liable to both oUiaumtt. - If the circum- H^rt V]^u T "^"'^ *^** *^" P^'^^" ^'^^e relief i« liable to both claimants, that ia no case for iiterpleader ? u ,, ! 1'^°*'* °^ *° interpleader suit, that the apph'- cant shall be liable to only one of the claimants. The of- A^^ f.\!°terpleader is T^ot to protect a party agaimt a double liaWty, but against double vexation in respect oJ ^ not a double demand for one duty," and the applicau must make his oj-n defence against each claimant, without help from the other." Example, of mle.-For this reason, a navigation com- pany whose captain signs two bills of lading, cannot call on the two holders to interplead;- nor can a tenant have rehef when he has voluntarily taken an independent lease aekTdbvWb . r"' '^''"^^ *" '«*^ ^*«t«' «^d is fli ^ 1? ^^^ ''"*•" ^""^ ^^«^« « ™»^»y company issued a scrip certificate to one claimant, and under a for J power of attorney issued the same stock to the other S ant, relief was refused when both claimed the dividends:" ,„ nil 7*"°" W, where a certificate of stock was is8u;d In. 7 1,°°' 7^'^ ^^ ^'"^ ^^'^t' interpleader was not granted, when claims were made under Jh." A vendor of property, who has committed himself incautiouslv with wo estate agents, cannot interplead when both clat the cies on the same life has e^cposed itself to claims uSder both and must meet them as best it may," but interpleader has been altewed to a fraternal order, where a lond cer t^ficatc issued to the same member was conditioned that [t 2 M'ST'SiiT;/'"*'" (1*1?). 1 Hare 436; Parr r. Ward a837» -S'^?? ^- I^^wn (1894). 44 III. App;204 :£"«"'» ^- i'b*Wr (1880. 22 H«n.1?*Y 849 ■National v. Plngrey (1886), 141 Man. 411. n ■ ' THE APPLICANT. 68 VI polio, -poo hr'.;wn"fet"i.: ^of h:^"""/ '°°j °'" • Trards at his reaue8t tho J " '''^®' *"'* after- policy one iX to t ^ r^ «"bstituted for that Jisf theSf^^er^itC'^^^^^^^^ "' "^^^^ Hut not «eroue . diwrL^^lTh! r "^^"*°'" entitled to call unon thp^ 7 ^ applicant is not He „.,„„,, after notice from the S^S^t .t^nr""- .nterun d«po.ition of the propertv, JrTk ^ S^' "°" arrangement with the claimant, f/ . j . ""'" "o""" in« the aubject Jtter InTo etrt .L °' r"""^ ""^K" there." '°°'^' "^ '^'^g airections theconrtlSth: ,^\f ° 'V"'^^^^^^^ "«'". »"' ■« the «,lion which uTl . u^ " • "^y defendMil aheriH." "" "'*'™"' '»« ""»"«>" against the it:tv£-- ^ "-"r-^sror3ir |-d_nonmproper„ e.e.i.ed hiaU'dlL^^-onrlXl;: R In Jnr. O. 8. 188. **"• '"^ 0^«U ▼• O'Nell (1858). "n^«*" *• P»«'««w (1878). 7 Ont Pr SM DfiHIct T. rmiatton (ISSS)' 10 Ont. ?;. m. 64 THE LAW OF INTERPLEADER. KM U0 au interpleader order.»» And where a sheriff sold some goods, which he thought perishable, and delayed interplead- ing until he might seize others, his application was dis- missed.** A sheriff, on going to seize, found the goods claimed by au assignee in insolvency and withdrew. The goods were sold by the assignee to a third party, and afterwards the petition in bankruptcy was dismissed. The sheriff then seized again, and upon the purchaser claiming, applied for an interpleader order, it was refused, upon the ground that he had already exercised a discretion in the matter.** So, a sheriff was refused relief when, upon going to make a' lery, and a claim being made, he withdrew without making a seizure." A sheriff cannot interplead when he allows any large liortitn of the goods to be taken out of his possession ;•• 1 or c«n he have relief, when he has paid part of the pro- ceeds of a levy to the first execution creditor, and seeks to have ' second execution creditor and the claimant inter- plead ts to the balance.*^ Hurt itand imUfferent. — The applicant may have no interest in the subject-matter, he must stand indifferent between the contending claimants. The assertion of per- fect disinterestedness is an essential ingredient in the foundation of the right to interplead. He must be a mere stakeholder, having no interest in the controversy, and without any rights of his own to be litigated." In one sense, it may be said, that the applicant has no interest when he lays claim to no specific part of the sub- ject matter, but he does possess a very substantial interest " Harria t. York (1892). 8 Man. 88. -Miller V. Nolan (1868), 1 U. C. L. J. 327. "Crump V. Day (1840), 4 C. B, 760. " Holton T. Ountrip (1887), « Dowl. 130. " Wheeler v. Murphy (1854), 1 U. C. Pr. B. 33a "Adama v. Blackwell (1884). 10 Out. Pr. 168. riST^f ^Vvl*" ^^I'J S"'"* ^- ^- 889: New York v. Hawa iS P. sfow.®"^ ?*• 372: Brideaburg Mfg. Co.'. Appeal (1884), Willi" »*• 27B: Wella v. Miner (1888), 25 Fed. Bep. Cal. 583- (18B4). 64 III. App. 483: Orovea t. Sentell (1804). 153 U. B.. p. 485: Browning v. Hllig (1887). 68 Mo. App. 594. THE APPLICANT. 65 in it, when, if one party succeeds, he will hurp f„ .1^ z-r " "•° °'"" "-^> •""-;; zLi lew. For this reason, interpleader was refuRP^ +« *k owner of land, when the tax coT.ectors o7twot«nf^^^^^^^^ each claimed .he right to collect taxes in resCt of hU ested in paying ZCer^^^TT-^'"'^ °"*"*"y ''**"- the owne'r ^^f It o^^riiXs^oT^^eT T "^T was allowed to interplead « ^ **"" *^^ ***^' ^« a ^o^hrdr^diaTtr^^^^^^^^^ t^w^r'h ^t ^i^*' * -ttet'f Ltr:ftr h^t s: to whom he should pay the note.' The principle of tZ dec^ion IS a very narrow one, and if foUo^^ ^ou,d pr yentrehef m many cases proper for interpleader. ^ ,«,,, r^* !u '"^^^'^^^ company canceUed a policy at the request of the assured, and issued it anew toother belt Sr2 "u ''?•"' "^"^ *'*«"^"^« presented upon hot ; new and old polices, the company was held to have such «! interest in the defeat of one of the claimants as to iT capacitate it from maintaininr interpleader.* ♦I.. 1 " ^■''f«^«^* *»«« ^^"^ Obtained by one or more of heuZtTo:^'"* the stakeholder, it'is impossTbl fo the latter to occupy a position of strict neutraUty betwe-n ^e parties, because he is then interested, either! sett " ^de the judgment, or in having the claim of the S n-J^^'%"?*'^' ""^^^ ''^"^^ ''°»° « company by the e" d' bTfoL^d *"-^"" *" "'*°'" *^«^ had'bin trans- ferred by forged assignments, the company was refused • ThomBon t. Ebbet. (S' * ^k N v' 272 •Horn? ;-,>'«'»«°>» (1880), 67 Ala. 4^!^ - F^x v"'£j"srio*^d i ?sfa.»' ^ ^•^ '^'' •»« 8 66 THE LAW OF INTESPLEADER. In M interpleader, because it was not the holder of shtees in which it had no interest, for it had canceUed the owner's certificate and issued a new one to the other claimant WTongfully and without authority/ Where a trustee for creditors under an assignment, was subjected to double claims, in which some of the claimants sought to set aside the assignment as fraudulent, it was held that the trustee was not an indiflferent stakeholder, because if the assignment were sustained, he would be en- titled to a commission on $300,000.^ It is no objection, that the person interpleading has an interest m the success of one cUiimant, when such success will increase his own chance of success in a prospective suit with regard to a different subject matter.* Where the plaintiff in a bill of interpleader had been arrested by one of the claimants before he could interplead. It wa« held, that he ought not, as a condition of being re- lieved, to be put upon terms not to bring any action • Where a pbintiff in an interpleader suit had previously set up a claim of lien, and had pleaded it in defence to an action at law, it was held, that this was no bar to an inter- pleader order being made, on the terms that the plaintiff should withdraw his plea and pay the costs at law and in equity up to the time of such withdrawal." The fact that one claim was denied in a previous suit, does not brinir it within the rule." * Where a special administrator had been ordered to pay a fund in his hands to the general administrator, and ap- pealed from the order, and pending the appeal he filed a bill of interpleader against the general administrator and a third party claiming the fund as belonging to the intes- tate s widow, it was held, that interpleader did not lie, •The Chicago ISdison Co. t. Fay (IWM) Iftt Tii swa National Park Bank v. LanahJln S m£m ^pppenheim v Leo Wolf (1846), 3 Sand. Chy N Y 571 ^Langaton v. Boylston (17U3), 2 Vea. Jun. 101. "Jacobaon v. Blackhnist (1802). 2 J. & H. 4tW "Orient T. Beed (1889), 81 Cal. 145: but aeo e^tm ««.««.» - Liverpool (1877). 12 Hun. N Y 03. Brennan t. THE APPUCANT. gy bj-». «e pWnti. h«, uken .Me. in .he m.,.cr bv hi. ..^^ti^ztruii:.^r-:-'tr: imiintM . bill .fteJ .„ J„l ^ .!"»)"*<» kh right to whieh he .tand. ., .i! '"'"'^ *""«« i" the po.iti„„ in *1.en . en.t,^i.n of . , '^"^''*'' ""»»« l»»e reUet." ment h, "h^fh hot: :^'IT'^ 'T '" •™°''- "d to p., the b.l.„'e tf™e c,.t:''n.'"r. "^ '"f '""*■• himwll of the statu, nf .„ " j T ' '" ''"' '•eprirej cannot interplead "if h '°^T°'''°' "^"'"'W", .nd who h« .dZSthe .i"e^f™h'e1'""' ' -*•" b. -d to .fnd indifterent t:;:' h^-TEtT"? -^ . docnTenf o?r for^rj I^J^ '" party, and itg .nXt" t^e " T"""' '° ' "^W w. held that he could Tot to, '' , TT" """^ '""°' " ke had a dntj to Trto™ M ^1^ ' '^""' '' ™ "*">. tween them ■■ TT„j„ ' .? *" '*'""' '■'- 3» N. Y. Sup. Ct. 372; Brides- " WilliamB V. Matthews (1800), 47 N. J. Bq. 196. 85 ni^i"*'^ ^' ^^^"^ ^^^^^' " ^^' **= ^"^^ ^- ^*'^*'" <^^'^' "tfppenhelm v. Leo Wolf (1846). 3 Sand. Chy. N. Y. 6n. " Brackett t. Orares (1808). 80 App. Diy. N. Y. 182 • Whltbeck V. WUtlnif (1806), 60 111. App. 620. " Caatner r. TwitcheU Ghamplain Co. 0896). 91 Me. 624 THE APPUCANT. ^ An applicant having collected a note placed in hi- h. a tain his bill " proceed^, that he could not main- EnelMh Art «f 1M1 ^ ,, ** ""y ^^''* >8 owing." n^H ! ^"bject-mattcr of the suit. («ium for eonuniMioii. freight rf« ta which prevented relief ^nrn!!- T^ "^"^ *^'« ^« ciain^n^g io^::l:ti^::r^z::"',:' ^^^^ r-- claiming a lien for his storage/r^UVerr h^";^^ a common carrier his lien for freight «» or «n of. cMUjuj, to a^.c. M. 00... 0, «:t'., I L ' n: Sl^twllT"' '"1 — ««* "M 0^' Tif Ti ."^^ ' pniiciple of interpleader." .Jsrr:,rir.7^t:.^f:fri^---^^ on the .ubiect.m.lter for ch^ge, wwTtf'i ! " IWed to .v,a hm,.,,, of fte Aot, although he *to,™ 70 THE LAW OK IKTEKPLEADER. 11! f, w lien on the goods in his handg for freight paid, and |or storage, as against the claimanta.** An auctioneer was allowed to interplead in a court of law as to purchase money in his hands, although he claimed the right to deduct his charges for commission.** In the United States an attorney who has collected money is allowed to file a bill of interpleader against his client and a third person, although he claims part of it to compensate him for his services.*' A claim for fees against the fund is not such an interest as wiU prevent him from maintaining his bill.** In Ontario it was enacted in 1869,«* that it should not be necessary in order to entitle any common carrier or other bailee of goods and chattels to relief by way of interpleader, that he should abandon any lawful lien he might have upon the goods and chattels, the subject of the application. In England the present practice is found in the Rules of 1883," which provides that the applicant must satisfy the court that he claims no interest in the subject matter m dispute other than for charges or costs. In Ontario and the other Provinces and Colonies in which the English Interpleader Code is in force,« the same rule prevails, which requires the applicant to disclaim in- terest except for charges or costs." The wording of the Ontario Rule now reads, " in respect of a lien, or for charges or costs." In the American States the Interpleader Codes are all silent on this question of requiring the applicant to dis- claim interest, but most of them require that he shall pay into court the full amount claimed, which by implication means that he cannot claim any part of the subject-matter." * Cotter V, Bank of England (1884). 2 Dowl, 728. "Best V. Hayea (1863). 1 H. & C. 718. " Gibson V. Goldthwaite (1845), 7 Ala. 281. ZSl^'^r^l^*'?.''- S^nerton (18«». «> Pac. 81G (Oregon). "33 Vict. Ont. c. 17. " Order LVII.. Role 2 (o). *Ont. Rule 1104 (o). "McDonald v. McKenaie (1888), 20 Nora Scotia 527. "Bee Appendix. li tut, APPLicAirr. 71 In India, the Code there in force, requires the appli- r* : t r,f *!.'' """" "° interest, othenri^ than T. mere stakeholder," and it has been decided that a railway comptty ck^mg a lien for it« charge, ig entitled to relief .« Wk«i rights MMrtad agidaat cki«wita.-Interpleader r^ta upon the fundamental principle that the applicant is the mere holder of a «take, which i« to be contested for by hL Tf S! "*' r' "*"°'^*"^ ^''°»>' indifferent between liT' V*! 'P r"* °''^'*« * ''"^^^ ^f c>«im against tt^ « °''.^*^ "' ^'^^ ^>"™'"^*«' it i« 'atal to hi« appllca- It sought to have a dwpute settled with one of the claim- Tr^: *l 4 I^^" ^'°™ ""^''^ '"*"^* «^°"W be charged upon the fund m question- so a debtor was debarred fr^n ^taimng mterpleader, where he claimed a «et-off against one of the adverse claimants.** A stakeholder who has been sued by one of the claim- ants may have a good defence, but when the second claim- ant appears he need not insist upon his defence, but may r'f * Tw'^f *" "^' * "°^«^y ^y interpleading, Zl the fact that he might have successfully contested the action will not prejudice him in his interpleader.'" If l«gahty of claim denied. _ An applicant, however dS "r'".'" ^'^^'^^^^ -d at the LmeZ: defend a claimant's action, denying that either one or both agauMt him If he do this instead of paying the money jnto court, he loses his independent poshL.'and c'nS fThe r.l"^/ '^^ considerations due to a stakeholder. If the stakeholder plead in an action, with full knowledge *Act 14 of 1882 c 13 8 471 Cameron (1872). 46 Mian n w. Z^ « " J" ^^' Hyman y. L-n, (1895). 42 Pac. Bep:'7& Wr) ^"'■" ^"•"'*' ^*'- ^• -!&*" I: -^"^'"d (IMO), 11 'sim. JB. -H^^?^i^ ??/• ^I^^''' <*8e0). 6 U. C. L. J. O. S 17 72 THE LAW OF INTEaiPLKADER. !• of the factH, it i8 a waiver and an abandonment of the riirht to relief by interpleader." .' ad„?^"*,1S! ^^^*'' ~ '^' ^PP""""* «»"«* therefore tu"i; ^h Joi' "'r'^"" *''--"* «»>*" -tablish hi! mn!; -iT 1 * , r, ""** ^^'^"'rily confess that the fund must absolutely belong to either claimant. By payinir it mto court, and asking the court to adjudicate, heTn elect jays the money may not belong to the second clailan^. It may be that there is some other claimant not preJ^nt whose title 18 superior to those who have appeared When he disputes put of debt didmed—When there 18 any question raised as to the amount for which the an- mterpleader proceedings, and so he wiU be refused reUef unless he admits liability for the full amount claimed!- L«! Tr I ! '' "' *^*^ *^" interpleader will not dis- pose of the whole matter, there will still be a controversy between the debtor and one of the claimants, and besiZ a cla,j„ant should not be required to separate his claim, J be obliged to enforce it in two separate proceedings." Ttl, :,f ^« •.'^°?J' «°«i one of them included in his Zl ^'lu*'. /^ '**' commission for selling the fumi- to cover the first debt only, interpleader was refused" T. Cummlnw (18OT) M Neb 23w'S^»V'* '"S ^'^'^^^ '""^ ^' Ann niv 9<»fl /v^ 'v . w • ""• Benwtein v. Hamilton aSBSt an "• X. AH; New England t. Odell (tfittn\ ra tx™_ »? «- ^SST''^ WflaboM nmu dajSl ^^r"'' i7.*^'I- P">- N. Y. 448; Olaaner v. THE APPUCANT. 78 But where a defendant claimed a few more dollars than a plaintiff seeking relief admitted, the plaintiff was allowed bill, which offerc.l to pay what was due was not considered bad, because the plaintiff brought into court less money ban was in fac due." The plaintiff cannot adjust his own claims against the matter in controversy, and ask the de- fendants to interplead as to the balance." It has been tl Ik ^^^r'^^^^^tt^' that if the plaintiff is entitled to alWei f^ r ""^"'^^'''^ "' '" «**™« °' the matters The rule just mentioned has not been universally fol- rl'/°A;"*''P^'"^''' ^"' '"^ ^""'^ ^«««« been allowed in r^o ,i T""* **' * ^'^* ''^"''^^^ hy the debtor to be due although one claimant has asserted a larger sum owing to him, but in such cases the claimant's action against the debtor was not stayed as to the excess." In England the rule is now well settled that a person n.ay interplead as to part of a debt claimed, although he disputes that he owes the balance. The obj;ct of tht for a larger 8„m than is really due to him, in order pur- posely to defeat interpleader proceedings •« tVeZi VTJ"" r**""* '° ^^' "^'S^^' °>°re than the fund, interpleader has been allowed, as where a number of persons claim as lien holders." ' Where a sheriff paid part of the proceeds of goods taken m execution lo the first execution creditor, taking an in" "k-'^fl* ''■ ^'^ <*^>- 81 C»l. 148. Willlami. V. Matthews (1800). 47 N. J. Ea 108 0'8u.hJ?„?&:-25""i^1: ^^^>' ^ ^-"^ N. Y. 570: MHwaokn, v. Int;ref^"''&;.^Sg?«*^&'.?^r ^*^^' " «• «" ^- «*»= ^c » New Zealand M ^Vn- w^J'^l ' ^\ *^'' '" ** Barhlw (1885). Md. 12^""'"' ^- 3^<>' *»»« ■*• Ammendale ▼. Andenon (1888). 71 74 THE LAW OF IimERPLEAOEIL •'t; denmity, it was held that he could not call upon a ^laira^ ant of the whole fund to interplead with a second execu- tion creditor as to the balance.** In New Jersey, the plaintiff in a bUl of interpleader made geveral contracts for the filling in of certain wet land with the defendants, agreeing to pay each according to the number of cubic yards of material deposited, to be ascer- tained by a measurement at the place upon completion of the work. Each defendant knew of the other contracts, and of the method to be followed in computing the compensa- tion. Through the neglect of the defendants a confusion of their deposits was occasioned, so that each claimed pay- ment for so large a. quantity, that the sum of their claims admittedly exceeded the total amount deposited. The plaintiff was ready to pay for tBe total amount deposited, but because of the confusion and the consequent dispute between the defendants did not know in what proportion to distribute the total sum. It wa« held that the bill must bo sustained.** In Manitoba it has been held, that a garnishee may obtain mterpleader as to the amount he admits to be due, although he may deny liability as to further amounts claimed as long as he submits for the determination of the court the question of further liability.** When ertopped from oUimingr an inttrert.— A person by becoming the plaintiff in an interpleader suit, and who ob- tains a decree, cuts himself off by his suit and decree from any nght which he had in the property;*^ nor can he after filmg his bill, set up a right to the fund in controversy, because by his bill he has admitted that he has no interest m the fund.** If one claimant do not appear, the stake- holder cannot then change his mind and claim part of the fund which he has brought into court.** JJAdam. r. Blackwell (1884). 10 Ont. Pr. 188. ^Packard r. Bteyena (18«B), 46 Atl. 250 (N. J.). Rogers T. Commercial Union Awice. Co. (1896), 10 Man 687 ^Sopreme Council v. Bennett (1880). 10 Atl.Xp. N J 785 ;^AndrrMn t. Wllklnaon (1848). 10 Sm. ft if M ai Wl -Cowwell T. Armatrong (1878), 77 HI. 139 CHAPTER III. THE SUBJECT MATTER. GenertUy.— The subject matter, in interpleader, is gen- erally personal property of some description, such as money goods or chattels; but most frequently, perhaps, relates to a debt, duty, or other chose in action. In some cases in equity, and under some interpleader statutes, the remedy also hes when the matter claimed adversely is real property! ValM of the tubjeet m«tt«r.-When the property iTdis. pute 18 de&iite and certain in character, as a specific chattel, that IS sufficient, its exact value is wholly immaterial, as in the case of bank shares.^ The vexation of double proceed- ings can scarcely be considered less, because they relate to a .mall matter. If the claimants, upon one of whom the ex- peuse of the interpleader suit must fall, think the subject It wor^h pursuit, they cannot complain that the holder two^' t? ^r ./' ^' * P*"^^ ^^ "^^ «""• "^'^^^ than in two But when the amount in dispute has been small courts of equity have sometimes been loath to allow inter- pleader because the expense of a bill might soon absorb a considerable portion, if not the whole, of the fund in con- a« beneath the digiuty of the court.* 55 iiSt^T! ff "" ^''^^' ^ ^^- «30: Cady v. Potter (1809). • ni^*r^ ^- Fijher (1840). 1 Hare. 436. S'ortor (1883); M M ^h.^; ^ ^''— ®»= ''^ "'•» Wallace v. 76 THE LAW OF INTERPLEAOX3t. i-i m': The amount of a fund in dispute, must be ascertained with sufficient certainty to enable it to be bright iS court, but the amount may be enquired into to f^er 1 whether the plaintilf can maintaii his suit/ hH mst state m the affidavit upon which his motion is founded the Murt be dirtmct ud t«gible.-Where two real estate rokers each claimed a commission, under independent con racts by reason of the same sale, the principal's personal ^0 a bi,rof m' °f r * '^^*^^* '^'' - would'a'Z - izo a bill of interpleader.' To enable a sheriff to inter plead, the subject matter must be something tan^b e aThJ asked protection in respect of a temint right, consisting of seed and manure in the ground, because a . aim toXm could not be a claim to goods and chattels.- Un^quidated dmiii«g«.-i„terpleader will not lie when he c amis are for unliquidated damages, or when on claim Bpcc ific proper y.- It has been said, that in framing the English interpleader provisions, the word < damages" was intentionally left out, so that the remedy appliefonly Jo a debt, money, goods or chattels." ^ th„"/"^*^,*''~^°*"P^^"'^'' ^" "« ^ «<"»« «««««. although the Identical property received cannot be produced, so lone as the applicant is able to deliver property in kind and quanti y equal to that received. Thu., a Silway compISy Xat rT !^'r^'^^-« *h«y had stored a quantity of whe! oTr *'"?"*' ^"^ *" ^^^^'^^^^ ^'°°« ^th other Ltll ^-^^^t '^^'^^y' *^**^°"«h **^«y ««"ld not deliver exactly the same wheat which was aUeged to be in question." •'wfilff ""• '^"^•■'"■n (1856). 11 How. N. Y. 468. 2^^ Re Canadian Pacific Railway v. Carruthe« (1S96). 17 Ont. Pr. :T1 THE SUBJKCT MATTER. 77 .'^ i"u "^''''' P"^' °^" *^« i'^«'^ti««i sovereigns de- poMted with hnn." An interpleader suit therefore,^ not m it« nature a proceeding in rem, because it is not th; stat^ of any particular money which is in question, for any mone^ which IS a legal tender wiU effectually satisfy the claTof the party who will receive it» Where it happened,Tha the subject matter consisted of bank notes, which th; sul ee^l claunant was at one time willing to take, but wWch to^k"" 'hT '''°" ^'' *^« applicant wis direct^ to make good the amount in current specie " Compwiy ditrei, diridend.. - Interpleader will lie in r^pect of shares of the stock of an incorporated comp^n^ The Enghsh and Canadian provisions cover any debt money, goods or chattels, and the latter term is one of the' widest words known to the law in its relation to pelnal property.. It has also been granted in resp^c tofsTare in a registered vessel," and of dividends due on a company' shares » A Scotch railway was authorized by Act of Par a decree for £935 and a second for £162,000, the railwav company was allowed relief in au action of m'ultipl^^^d- al«o"r!? •"^^•P^*-Money on deposit in .ank may also be the subject of an interpleader." as well as a balance m a loan company's hands, part of a loan secured by a mort- gage to the company, and held back to pay off certain charges « In New York, where the bank£g law! proj^ » SZf" \ M«^FarIane (1809), 81 L. T. 67. . »HnW« ^' ^"»»«>"«»> (1846). 7 8. * M. (MiM.) m ^f^^'^^J- ^owniend (IgH). lOB MaJ! lifi. ' "• Franco v. Joy (18W), 06 Mo. App. 488. I' Mi t i lit ! 78 THE LAW or IMTERPLEADER. BpeciaUy for the relief of uvingn banks when money on de- posit is claimed adversely/' it has been held that this doe* not cove: the case of a draft sued upon." Interpleader will lie when part only of a deposit is claimed.** Land.— When land is claimed adversely from a person in posssession, or in whom the title is vested, it would seem that a bill or an action of interpleader will lie." But under interpleader statutes, knd cannot ordinarUy be the sub- ject of interpleader, unless specially mentioned, as it is in some cases." Thus it has been held, that when a sheriff levies on land, or on an interest in land, he can physically seize upon nothing, and his levy need not be made upon or in view of the premises. The interpleader rules afford him no protection, because he needs none, as he can per- form his official duty without risk of any sort.** In Ontario a sheriff may interplead when lands and tene- ments are taken or intended to be taken in execution' Hence a sheriff has been relieved, when he was directed to execute a writ of possession in respect of lands and a defendant to the writ, and who was in pos- session, claimed the lands as guardian for certain in- fant chUdren in whom it was aUeged the title was vested;" as also where a house was securely locked, and a thiid person in possession of the key, notified the sheriff that he was the owner and threatened an action for damages if the sheriff should attempt to enter." The same provision formerly existed in Manitoba, but was not consoUdated in the Code of 1895. Hxtnret.— Fixtures attached to the freehold may be the subject of interpleader, for they are often removable ae "Sec. 115. c. 688. of the Laws of 1892, Master v. Bowery SavinfCR Bank (1000). «'3 X. T 8 964 ~ProKre«ilve y. German (1890). 29 N. T. S. R. 528. »Ont. WnJe 11M (h\. ■ Emewon ▼. Humphries (1892), 15 Ont. Pr. 84: and s^ Adam SOI. V. Adamaon (1887), 12 Ont, Pr. p. 28). ■ Hall V. Bowerman aMO), 19 Ont. Pr. 268. THE SUBJBCT MATTER. 79 ^♦""kI!/ t°^ "'^^"' * •*•""* '^•^ J«"«d 0° machinery thus attached, he w.b held not bound to determine, wi^Ih^r the property was real or personal, it was enough if there "ere conflicting ckiins.- An issue may accordingly idTr Jted *T^ • . ^"^^'P'^^der has been allowed, where the articles seized were a culm separator plant, co,^LtLt? buildings and machinery." "'wwimg of Onwing cropa. _ Interpleader has been allowed to a ^^"^d^* ""' ^r "^ ""^' '^--^ "Pon bv hiL " Bwda ud i«pm.-The title deeds of land and othpr papers, may be the subject of an interplead rVh^ l^^ was granted to a bank, with which Title deeds Srd W hcTo IV""' ''' * ^"»°' «°^ -- claimed by the heir of the depositor and by a grantee of the land;" and to a pe»on in possession of deeds and papers, which came to him through the death of a guest In his hoiie >» ™ Zi Tku"^ '''' P™'**''^' *« »"«* « sheriff to inter plead, when he has seked the chattels of a corporation whVch arc su^t to a charge in fav»•«> (1887), 1 Jur. 776; Fargo >. Arthur (1872), 43 How. N. Y. 183; but see to the contrary Grant ▼. Pry (1886), 4 Dowl. 135; Collis t. I^ (1886), 1 Hodgea 204; Burritt t. Preaa PnbMahing <3o. (1807), 19 App. Div. 609 and 26 App. Div. 141 N. Y. "City Bank v. Bangs (1881), 2 Paige N. Y. 670; Howland v. Lounds a87S), 61 N. Y. 604. "Pollock T. Morria (1887). 106 N. Y. 676. THE SUBJECT MATTER. g. ri'e'Trade.^ """"'^ '*"*"' '"'^" '""^ '"^J'*-" «' the *i, f T^ «^«— Interpleader will not be allowed to the holder of a stake, deposited with him to abide the ^e^t of -n Illegal race.« With regard to the propriety ofTn mteTleader order made at the instance of'the^h^ L of " stake on a bilhard match, the English Court of ZZ^i has recently offered the following remarks, in dclg'S "^Z . l^''^ "^''''"^ °°'y the two claimants ione oX^:*: *'' ""'^ «"^^ '' -« »••» opinion^that :Le^h wheT^T 1 " \*^'"°« '**'^*™'^*' it is very doubtful can tvp '"""^ T^'^* *" '■^^'^^'='« th«* the siakeholde Z.^ «°y expectation of being sued for such a sum Another member of the court agreed concerning the caro" st^elldfn^^^^^^^^ ""T'' ^" '^'"*^°« «° -- -J^-e « stakeho der is dealing with moneys deposited under a wairer ng contract. He did not think it would be going 110^; a^ants'^ofir*' °"^'; °"* '^ ^ '^^^''^ -'- tt Claimants of the money deposited are the parties to th.. L;. !k- '•'v*^"'" '' «°*"^«^ to the stakes.*. ground „, iae..4 trSr .hftLTVaY" *'° ut^whm they .re the „me in .unonBt, that circnmrtance Oal* (1873). 6 W vT^QH.nSSL^ ^'"^" I'"'- «»: Oil Ron v Johi..toii V. OlfTer (iSM). 6? OWo. a ^' '^^ "'' ^^P' <«: U.h.l. 6 I' \ ' if': ' I J I I 1 ■A •I THE LAW OF INTERPLEADER. goes far to determine their identity. The amount may not be .ufficient of itaelf, for the amount may be the same, and the debts different.** The claims must refer to the sa: i subject mattet, and not to collateral demands arising out of the right immedi- ately in dispute," interpleader was never intended to apply to different claims, merely because they originate out of one transaction; so interpleader was refused to a person who had had a house buUt for himself, and admitted a sum due, when- the architect sued for the contract price, the contractor employed by the architect and who had been dismissed claimed the price of his contract or damages for dismissal, while claims were also made by an assignee of the contractor, and by artisans.'' It has been decided in Mis- sissippi, that it doe^ not matter, that the claims are upon an open account for the value of property, so long as each claimant claims the same amount.** When one persons claims the subject matter or its pro- ceeds, from the applicant for relief, and a second claims unhquidated damages for conversion, or for breach of war- ranty or for negligence in selling, or for not accepting a bill of exchange for the price, interpleader will not lie be- cause the parties do no: claim the same thing, the claim Of the person seeking damages is against tbe appUcant TTm ^t""^ "*** ■'^*^"* *^« ^"^^ «' property in hi« hands." Nor will interpleader lie, when both claimants claim damages agiunst the person seeking to interplead." -Glyn T. Dnert>ary (1840). 11 g|m. 139. TwJ^'*' V. Cnrtte (1821). e Price. 661. Wright ▼. Freeman (1879t 4« t t r« noio %. ^~* '*• *"'''• -^nu ^'"r^Note in Harrard Law Rev. Vol. 15, p ^ (1901) "Pnlton T. Chaae (1889). 25 N. T. St. Rep 711 ^ :| THE 8UI .BCT MATTER. «„ Chm la vUeh relief ref iu«d a i. anowe' ^* N. Y. St. Rep. 2nO; hut nn.- fnll'll ""■ W'.de (1880). 58 Cnl. 48: 69 Cal. 133; where It was hhI.I ft'nH.nf.- defendants, but it must appear at least, that the de- ft ndants assert adverse claims to all and every part of It. ■ Toulmin v. Reid (18B1). 14 Beav. p. 806. THE SUBJECT MATTER. ^7 the word 'same ' doe« not appear in the English Rules It clauns the whole amount and the other only a part relief will he m an action of interpleader, but no^ byVmot C under the code." It has been held in Scotland that a cred " tor cWng a small part of an estate cannot throw the whok estate mto court for distribution by the expensive machinery of multiplepoinding.- Where there were com petmg claimants to one half a trust estate, the rilht to t^e other half not being in dispute, one of the claimant rli ed an action of multiplepoinding in the name of tL rust. uTsl d\:at1."^^?- ^"'^ ^""^* '' '''' '"-^^ ^^ It was held that the action was incompetent, althouirh it might have been raised as to the half in dispute "^ Pa^Mit or deUTery.-The person seeking 'the assist- damg his willingness to pay the fund in his hands, or the debt owing by him, into court, or to deliver the property m his possession to such person as the court may dirLt - This was the rule in an interpleader suit in chancery and co^ wh .K ^' ^''^"'^ *° P"y the money into court, whether one claimant abandons or not " to ntylfl'^*!.'' *^'"'"'"'^ "*^"**y' " °«t bound to offer K pay the fund into court, as a condition of being exoner- clon'^^lVcif ''^rr '' P^^''^"^ - anothVrTrl mction. In California ,t has been held, that the plain t.ff m an action of interpleader need not d;posit the mt" Bell (?^)r8^Slm m-- Shl"''"^"^'^' ^ ^- Ab iJa Meux v 405: N*w York ^iS''''' ^A„C»'««ter (1834). 2 E.l. cCX Y.' p- 372: Shaw V ChSteHl^^P-i ^'^V^P), .•» S.\. Sup hattan (1888), 82 W Add 4in.^H^ ?''"' ^- X: '^' M""^"-"' v. Man AD.Iewon (1889), 71 Md. 128 '• **'*• Ainnionilnle v. •MrKih""" ''• y*" Zaudt (1888), 17 Civ. Pro \ Y 4as B.rry r. Equitable (1873). I4 Abb P. S'" 4 y a 385 V V 88 THE LAW OF INTERPLKADEK. in court; but, the defendant in an action, when applyine for relief, must do so.*' He mut MtuaUy do io.— Besides offering to pav or ttans for the subject matter as the court may direct, the person seeking relief mu«t be in readiness to bring the money or thing into court, and must actually do so, before an injunc- tion will be granted, or at least before the injunction takes effect." Where a bank sought to be relieved, it was held impror , r the bank to open an account to the edit of the actij^, liud it was oblit,ed to pay the money into court.»» It has been held in Kentucky, that a debtor may be allowed to interplead, although he may not be able presently to pay the money into court, but an injunction will not be granted until he, gives bonds and security that he will ultimately pay the fund.** The fact that one of the claim- ants threatens to appeal, does not warrant the applicant in refusing to pay the money into court, under the inter- pleader order which he has obtained, it is his duty to com- ply with it;»» and he may safely pay the money in, in pur- suance of an interpleader judgment, in spite of irregulari- ties in the interpleader suit, which are uncomplained of by the claimants.** Eules M to p»ym«iit.~The rule is explicit and well settled, that on a bill of interpleader the plaintiff must bring the money into court, before he takes any step in the cause.*^ It is not necessary that he should offer by his bill to pay the money into court, it is sufficient if he brings it in before taking any other step.** A bill, is therefore de- fective, when the plaintiff neither brings the money into court nor offers to do so. The offer is nHjuired to prevent " Fox V. Sutton <1000), 68 Poc. 880 (Cal.). -Falvre v. Union (1881), 86 N. Y. St. Rep. 78. •• BlifBt V. Kouns (18S8), 7 Dana Ky. 406. " Look V. McCahlll (1886). 106 Mich. 108. "Wheelock v. Godfrey (1883). 3.5 Pnc. Rep. (Cnl.) 315. •' Willlamn V. Walker (1846). 2 Rich. Bq. 201 8. Ca. " Meux T. Bell (1833). Sim. 176. THE SUBJECT MATTER, 8» an abuse of the proceeding, and although a bill is not de- murrable because the money is not actually brought into court, yet when that is not done, the offer to do so must at least be made. The court will not require the claimants to interplead, until the money is either in court or subject to Its order. Thereby the court takes jurisdiction and retains the possession and control of the fund."' It is not enough, that the plaintiff offers to pay the fund to the party who may be found entitled.* In an early decision it was said, that the plaintiff having offered to bring the money into court, it was not necessary for him to pay it in unless the other side required it;^ and that a defendant could not compel the plaintiff to bring the property into court, before the latter had applied for his injunction- and m Pennsylvania that pa.yment into court is not a condition precedent to the issuing of an interpleader order.* In the Scotch proceeding of multiplepoinding consigna- tion m every case is not required, but when dispensed with it is only for some good reason, and it is enough if the debtor IS ready to find am,, security that the debt will be forth- coming." Consignation when made is for the behoof of all concerned, according to their rights established or to be established. The fund may be said to be in manibus curiae as soon as the multiplepoinding is brought into court, just as much as after the fund has been consigned. The fund IS at the disposal of the court from the first. It is a ques- tion of circumstances and discretion whether consignation should be ordered. Consignation may be made by the stakeholder himself of his own accord, if he wants to be quit of any claim for interest, or any more responsibility Barnes v Bamborifer (1000). 100 Pn. St. 12.3. Clow r. King (I860), Ct. of 8w«ion«, 13 D. 1.32, 90 THE LAW OF INTERPLEADER , J '4 if 1 , i lij about it, whUe the court may order consignation at once if any body says there is danger of the fund not being forth- coming.' l>eUvery of land.— When land is the subject of the con- troversy, it has been held, that the plaintiff ought to make conveyances of the same ready for deliverv to each of the claimants.^ Control over subject.— It follows therefore, that the ap- plicant for relief by interpleader must have the subject matter in his possession or custody and if it has gone out of his possession, so that he cannoi fu-ing it into court, in- terpleader will not lie, because he i- unable then to do the only act for which an indemnity is given, and besides if ho is out of possession he is no longer in jeopardy from con- flicting claims.' It must also be in his possession within the jurisdiction of the court.* It has been held in Alabama, that a bailee is not justi- fied in surrendering the property to either of the claimants. The statute contemplates that he shall retain possession until there is an interpleader, and deliver possession to the claimant who gives the required bond, and if neither gives the bond, it is his duty to retain the property to abide the result of the suit. The bailee violates his duty, when he delivers the property to the adversary claimant, and thus places the bailor at a disadvantage, and thereby puts himself without the pale of the statutory protection. Such an act amounts to a conversion, and prevents the further operation of the statute in his behalf. The policy and effect of the statute will be defeated, if, after giving the notices authorized by the statute, the bailee is allowed to conspire or collude with either claimant, to put the property beyond the reach of the other. The bailee is required to occupy a neutral position, •Smith V. Orant (1862). ^t. of SoHsion. 24 D. 1142. 'Farley v. Blood (1854). .30 New Hampuhire. 3M. Go^ -^? I w" w'*. ^\**AV.^ °!^^ ^- ^»'- ^«0= Co„«e„« V. Me- , '^? A^K i ^;r*v^„iy'''*"''"'*^ 29; VosburRh v. HuntlnFton I «. m • ^ ^^'' ^"""" ^- K»>bin„ha.« (188?), 110 • Re BniDBwIck Bolke Co. (1885). 3 Man. 82(S. THE SUBJECT MATTER, gj ^^ li ^''^rr""'T "°*" ^' '"'' "°^«^ '^^ provisions of the statute deliver the property to either partv " U paid to one claimant—A stakeholder therefore can- t°o n^o ? r ',"^'" ^' ^'^ ^''^ "^ transferred the subject fi!; V.u' ^'«"»«"*«'" ^«''»«e one claimant is then sat- sfied, and there is no person to eall upon to interplead "th the unsatisfied claimant." If the whole fund I brough mo court, interpleader will lie, although part has been pa^ to one claimant before the other appeared," or where I«^ has been paid to one of the claim^ts through a n^s- take." In Connecticut it is not the practice to bringThe subject matter into court." ^ In Ontario it has been held, that the remedy will lie when the fund has been paid over in obedience to ud : cial authority, as where the applicant paid the money in question o one of the claimants, an assignee in insolvency TJltZin """"^ *^ ''' ''^ ^^' into court!' awai the resul of an issue." A debtor was also allowed sheriff." "*"P'"'*^'-' ^'^-^ ^^ had paid his debt to a When ihwiff hu parted with goodi.-A sheriff cannot jnterplead, when he has sold the goods and paid the proceed Claimant, nor when he has allowed the claimant to take "Trj^" ""• "®»»"»»n <1884). 76 Ala. 423. Ellw,S'"S^):i?Ta'^*- ^«5%;:n* 'J^'- '■'"■' Marvin v. 15 Phil.. Pa. 280rH"St T HeS^ i^'"V'i"'^*" V^'««-ke (1881). .187;'"JroLf S ^^^^-^^^\^^^n'l: Wa.o„ "o^™K^- ^'il?' <*^>' 3 Dowl. 143. Oniisby r. Wight (1803). 27 Ir. L T R m .. T^ 7?^ ^- Henderson (1876). ft Ont Pr 2»n Na.h "i^i^l a^CfkTV """*• ^"*' ''' ■' -"^ - "'- Ande.ioMa:3 Tsl:'^^ ^*^>- ^ I^-'- P- «*«= Ch.lon v. « ^'*^''*'' '^^ Almond (1832)! 2 L J p^ iq. n . 2 n«wl. 391: RnrnMen T^Conrv(18.& o^ t"' n '"i-J""* ^^'®*»- McDerraott (ISBO). 2 Ir. Jnr O g? S^^' ^ ''^- '^- "' "": Molloy v. m r n i THE LAW OF INTKRPLEADER. away a large portion of them through want of watching.'" But a sheriff was allowed to interplead, when it appeared that he had delivered the goods to the claimant, with the consent of the execution creditor, under an arrangement by which the claimant if unsuccessful was to deliver the goods or pay their value.** When ihwiir hu the proceeds.— A sheriff may interplead however, when he has sold the goods and still has the pro- ceeds in his hands," or where he has the value of the goods, or the amount of the execution, the claimant having paid him out and taken the goods." A sheriff may also inter- plead, where after a claim made he has sold the goods with the consent of both pa^rtiee, and has the proceeds still in his hands.** When a claim is not made until after the goods have been sold by the sheriff, it is to be assumed that the proceeds in his hands represent thei/ fair value.*' Offer to pay yalne. — Relief will not be granted to a stake- holder, who has parted with the property, upon his under- taking to pay ov;.r its value to the party ultimately en- titled, because it is not enough that the claimant may have the value of hie property, he is entitled to it specifically.*' So, the court will not interfere to relieve a sheriff, when the proceeds of goods levied on have been paid over, al- though he may be willing to bring a similar amount into court.*^ When paid before lecond claimant appean. — Inter- pleader will be refused, although the subject matter has been handed over before the second claimant appears, as where a sheriff sold and paid the proceeds to the execution creditor before he had notice of the adverse claim.** "Wheeler v. Murphy (1854), 1 Ont. Pr. 83fi. " Cohen v. Burke (1884). 1 N. 8. Wnles W. N. 144. "Bofth V. Preston (1860), 3 Ont. Pr. 00. .tcJ^.^'.'i"^- J?^»"" ♦^*®^>> ^^ Out. Pr. 1.38; Smith v. Critchftel.l (lS8r>). 14 Q. B. D. 873. » Darling v. Collatton (188.3), 10 Ont. Pr. 110. "Booth V. Preston 0860), 3 Ont. Pr. 90. * Burnett v. Anderson (1816), 1 Merlv. 4a5. " Inland v. Bnsheli (1836), 5 Dowl. 147. » Soott ▼. r^wls (IKVl), 4 Dowl. 2rin: 2 C. M. & R. 2K); 1 Gale. 204; but see Allen v. Gilby (1834). 3 Dowl. 143. •THE SUBJECT MATTER. 93 Wkoi creditor withdraw. Aerif. - Under an English rule, which 18 al80 in force in Ontario," requiring the Bhenff to withdraw, upon the execution credito? ad- mitting the title of the claimant, it has been held that the Bhenff cannot have relief when he ha« withdrawn. It >va« eaid that the effect of the rule on the sheriff, was to put him m a worse position than he occupied before, and that it seemed hard, when he had withdrawn on riceipt of the Htl^'fhl I r7.*'"" "'^''°' ^'^'"^"'"^ *he claimant's title, that he should not be able to gef relief by an order of court directing that no action should be brought againsi "T .K^ \"''2"^"' ''"^"'*™«"* *« '^^ ^°?'-h rulfTow iir . I'f "'^ '' ''^''' ''' ^^°*«^*-" ««" he has with- ttt nnd ".'"• ''"•«"'^'°«°* i^ Ontario, says explicitly, that under such circumstances no action shall be brough against the sheriff.** "rougnt of l^^r*"? *• "^•-^''''^er the Ei,gli8h Interpleader Act to ITJ^ * «J«"f7'«ht interplead, when a claim was made to goods intended to be taken in execution, and the same provision exists in the present English and Colonial rules.- A sheriff who intends to levy, may therefore interplead m certam cases, although he has not made an actual set Zv J 7 T^'' '"^"^^ ineffectual attempts to cvy but does succeed in doing so.- A sheriff was allowed to interplead on an intention to seize, where the debtor baUiff being m charge autside and watching to get in-"" and also under a writ of possession, where the house 'in question was vacant, and the key in the possession of a third party, a mortgagee, who had notified the sheriff that 'xtl^' ^^U' P"'^ ": Ont. Rule, 1115. " Ra7ri Ja'"" ^*^*' ^^ ^^'"' 3«7. " Ont. Rule 1115. I^Kng. Order LVII.. r. 1 (ft); Ont. Rule 1103(6) "Lea T. RoMie (185B). 11 Ex. 13- Day v C,r^ nmox t t, - £Tb J;r7igs«>i.".«»* p- ^ --dm ^' ' """ *:*■▼. Bonie (18BB). 11 Ex. la Joliff. r. Gilbert (1891). Ont.. the Master not reported. 94 THE LAW OF INTERPLEADER. he was in possession, and would hold against the plaintiif in the writ who was pressing the sheriff to execute.** "^ It has been said, that in many cases the sheriff may be well justified in coming to the court, before he puts himself, by an actual seizure, unuer circumstances which might per- haps subject him not only to an action for the value of the goods, but also for damages for taking them,*" and that cases may arise in which great injustice would be done, if the court will not interfere unless the sheriff has seized.*' On the other hand it has been held, that the jurisdic- tion should be rarely exercised,^" and that an order will not be made, unless the material shows the property or posses- sion of the goods to l^e in the defendant, and hence that interpleader cannot lie when the goods are secreted and the sheriff cannot say where they are." The sheriff must show a bona fide intention of seizing, and cannot interplead when there is no physical difficulty in the way of taking possession;" nor can he have relief when he has withdrawn upon a claim being set up, for in such a case he does not come to the court intending to take the goods.*' In Pennsylvania it was provided" that a sheriff might interplead, when any goods or chattels were " entitled " to be taken in execution, and hence that the sheriff might come to the court before he had made an actual levy." It was suggested that this course was proper when the goods were in the possession of the claimant," and that the claimant had no right to insist that there she ild be a levy, although " Hall ▼. Bowennan (1900), 19 Ont. Pr. 2C8. "Day V. Carr (1882). 7 Ex. 883. 8. 384!*" ""* "**"'*'' ^**®^' " ^*- ^^'' ^* ^- '• ^*- 280; 1 Jur. N. Ont!* pT 378.^"** ^^^^' " ^*- ^^'' ^'^''*" ^- ^"'« <**»*>' 10 "OgdPii T. Craig (1884). 10 Ont Pr. 378. Oortln V. Tune (1846). 2 Upper Canndn Q. B. 177. Holton y. Ountrip (1837). « Dowl. 130; 3 U. & W. 145 "Act of 10th April. 1848. t. « *». X40. " Phillips T. Reafran (1874). 7B Pa. St. 881. * •Zachariaw v. Tolton (1879). 90 Pa. St 286 THE HUBJECT MATTER. 88 ln'r"!!i°fi P;*'""^/*'^'^* «« i"«-t for hiB own security « Good! taken from cUimant-The circumstance of the good* being seized in the possession of the cM^Zt l .tn^nger, and not in the possession of the executbTdebtor does not prevent the sheriff from interpleading." It W ^'nted 1". ""7""°' ''''' interpleade/orders' should t granted with extreme caution, and only after strong prt sumptive evidence of the goods being k debtorXwS should ordinarily appear by his being in possession ran affidavit of the belief of the sheriff,1f he^asTch Sief and by a similar affidavit from the execution creditor « A sheriff IS not liable to an execution creditor for not smmg goods in the possession of a claimant^and in Lh a nase he does not require relief by interpleader.- Jt k now provided in Ontario that a sheriff shall not be ob iL tl seize property in the possession of a third party £„" sheriff has been furnished with written instructions snlfv ing the goods, and a bond as security for his own aJHt tZT r *r ' ^^P*"«^«' ^"'^ ^"'j^- tha thTs shaS no andlords bailiff," nor when they are seized in the posses! " are ^eizeTJh'l "'• 'T' ^° ^^r.l.ru,^y>- norThen ZLT- ''^ '° **>« possession of a receiver an- pomtod in an action in an Exchequer Court, whereTey cot ."^'•"{i'"'/- ««»«»» ^1874), ra Pa. St. 381. "AtlJn' J'-J^^*** 26 May. 1897. ■k"""ii'' """' <'8"l. ' Ont; Pr 200 il 11 S M THE LAW or INTERPLEADER. 8i«t of 8 ship 8nd it« furniture," because they are in the custody of the law, and cannot properly be taken." Xor will interpleader be allowed to a common carrier, when the goods which were in its possession have been seized by an officer of the law under legal process.** In Ontario, under a special statute, a sheriff may inter- plead when he takes the goocls from the custody of a Divi- sion Court bailiff.'* Intereit on the fond.— A person seeking relief by way of interpleader, should offer to pay into court, interest on the fund, if claimed." If a stakeholder refuse to pay over a fund, because of a double demand, and do not then com- mence interpleader proceedings, but holds the fund, and does nothing until »ued, he can then only obtain relief by paying the principal with interest up to the time of pay- ment." Interest is not estopped by a bill of interpleader improperly liled." Where a stakeholder lered to pay the money, if indemnified, and on being refused, filed a bill of interpleader with proper diligence, it was held that he should not be charged with interest upon the money de- posited in court." When the full amount of the fund h deposited in court, the applicant will be relieved of interest subsequently accruing." To relieve himself, therefore, from interest, the applicant must pay the fund into court, merely expressing a willingness to do so in his answer when sued by one of the claimants, is not sufficient, he will then bj chargeable with interest." In a Massachusetts case, where "WiUlamson v. Bank of Montreal (1899), 6 Brittoh Oolnmbia, " But we Tooke v. Pinley (1821). Bowe Rep. 420. ".Merchants' Bank v. Petew (1884), 1 Man. 372. Pardee v. Glass (1886), 11 Ont. 275. "Spring V. 8. C. Insce. Co. (1823), 8 Wheat. U. 8. 2fl8: Blimol.l V. Audland (1840), 11 8im. 23; Australian y. Broadbent (1877), .T Victorian L. R 138; Feldman v. Grand Lodge A. O. U. W. (1892). 40 N. Y. St Bepr. 122. "Sibley V. Equitable Life (1888). 50 N. Y. Snpr. Ct. 274. -Michigan v. White (1880), 44 Mich. 25. " Richards v. Salter (1822), 6 Johns. ChT. N. Y. 445 Lambert v. Penn Mutual Ins. Co. (1898). 50 La. Ann. 1027. - Hayden r. Saddlery (1888). 3 Ohio Circuit Cti... 67, 71: Port CUnton V. Clevestone (1886). 10 Ohio Circuit Cts., 1, 6. 480. THl SUBJCCT llATrC& ^ one cWmtnt contended that he wm entitled to interest nnon Jrr,T.u""* ^^' ^' ^« ^"^ ^^ deprived ont Se l«d held the money ready to pay it to which emoT the c^i. was entitled, the facts did not show that the ba^ should be compeUed to pay interest •* A n»«i«« u- «i« .h..,d not ..,, „*5 overrnUng Wolff t. - Wy .. H^d. (18B8, 49 P.c. 408; 52 P.c. 1081. W.o. 7 f . H CHAPTER IV, THB CLADfANTO. m I: I AU oUiBUUits ■hovld be brought ia.— The person seeking protection through interpleader, should always be careful to bring before the court all claimants from whom he anti- cipates trouble, and who have made claims upon him in respect of the property in dispute.* It is one of the first principles of aU jm! c.ture that, whenever there is a dis- pute as to the right to property, or its value, all the parties interested therein should be before the court, in order that the matter may if possible be finally settled and com- plete justice done.' The applicant should remember, that a person not a party to the proceedings is not bound by them, and may still have his remedy by suit against a stakeholder, or a sheriff, for his property.* The plaintiff, in a bill of inter- pleader, who leaves another party unprotected, by not bring- ing him in, and thereby renders necessary the filing of an- other bill, may not be allowed his costs.* The defendants to a bUl of interpleader, cannot object that, a third party is not made defendant as well, when the absence of such third party cannot affect their rights.' *Cndits Oernndenw v. Van Weede (18»4). 12 Q. B. D. 171. 1 A,^M 7^.^* ^^}^' ^I^ "*• ^' »"'««««»' ▼• England (1888). l^raold 106; Reynolds v. .Btna Life Ins. Co. (1896), 6 App. Div. ' Palmer t. Elliott a846). 4 Bdw. Chy. N. T. 648 'Gibson T. Ooldthwaite (1845), 7 Ala. 281. TBS CLAUAlfTS. 99 il *^ ^ ^ ^ ^^"^ ***•*' " • defendant do not Botrfy . third p«ty claiming, that he i. being nnelXl w^re. the protection of the .tatute which Zwstter! p^^r, «d I. remitted to his common kw liability L under hm jnd^ent in the suit, is „o protection to . sul^ sequent action by his bailor the third party • Tke.Mib«r of oltiiwat^-The number of the cUimants M only hmited by the number of claim* which C been made, and it is accordingly no objection that a blU Zt. J^*'*./^"^*" *°d woman made a deposit in a ^, to be repaid to either of them, and the rZ having died, three parties claimed the fund, the man's executoT his wrfe'. administrator, and the woman the surv'^fdt' o"! wUV^V^''* P"P*^ ^ ^- interplead'Hs'tt thtwri "^ ". " '" one proceeding the court coiild end Ty. Zft ''if™^^"^ «"»d determine who should receiTe ^e ftmd.. There must always be two claimants, andTone withdraws, interpleader wm be refused.* FBder Britiih 8t«tut«.-.In England, under the present statutory provisions, relief by interpleader may be^S two or more persons making adverse claims- or when a debtor, trustee, or other person, Uable in resp^t o Tchie of tv 1 '"''^°''' " "°y *»"« ^^»i^« "«der him, or of any other opposing or conflicting claims'to the de' t Z wh::rEtn '? r-^^' '^-'^ o^^^^^ Where the English rules have been ador' v. the same n«.r "■•ke partiM, .11 person, bringing forward cl.in»..> i^'Jt.-CJSVJT;. '11" A « „ , \l'' I Y 100 THE LAW or INTBRPLEADER. H III - Vaitad Stetw CodM.— In the Umted States, under the various State codes which allow a defendant, who has been sued by one of the claimants, to apply for relief by inter- pleader, the defendant makes parties to his application tho plaintiff or plaintiffs who are suing him, and all the third parties who also lay claim to the subject of the suit; and where an action of interpleader is allowed, as it is in some States, the plaintiff makes defendants all parties who have brought forward claims.** In iheriff's omm. ^ A sheriff, under the English and similar systems, charged with the execution of process, may interplead when a claim is made by any person other than the person against whom the process issued." This means that, he makes parties to his application the execution creditor, and the person or persons who are strangers to the writ and who make claims. In Pennsylvania, all parties making claim to the goods levied upon, should be called before the court;" and now bj/ statute, the sheriff must give notice to the claimant, to both the plaintiff and the defendant in the execution, and also to the person who was in possession when the levy was made." C l a im a n t himi e lf appearing. — Upon a summary applica- tion under an interpleader statute, the court may allow a new claimant to come forward of his own motion, and will hear him although he has not been notified." In an earlier decision, it was said, in a sheriff's case, that the object of the Act is to give protection to the sheriff, against all those from whom he requires to be protected, and who are called upon by the rule to appear." Upon a bill of interpleader, a further claimant may, «--!^*,** I' Fi' ^ <**"'• * ^"•'' N. Y. 1 ; HMtingi v. Cropper. (1867). S D«l. oh, Itt "KngJUh Order LVIT. t. 1 (6); Ont. Rule 1103 (h). " Van Winkle t. Young (1880), 87 Penn. 8t. 814. " Pa. Act of 1807. See Appendix. " Ibbotsou T. Chandler (1841). Dowl. 280. "Clarke t. Lord (1883). 2 Dovi. K. THK CLAIMANTS. 101 m upon hi own petition, be made a party to the suit, and an ord'T ' .11 be made permitting him to appear " ShrfiTi ou«t in OiitMio.-In Ontario, where there is no priority among execution creditors, the sheriff makes parties to his application all the execution creditors who have ex- ecutions in his hands, whether from the High Court or from the County Court.- He also brings in any Division Court creditors having writs against the same goods, al- though these are not in the sheriff's hands. What his duty with regard to these last mentioned creditors may be, is not made plain, as their writs do not bind the goods unless there has been an actual seizure by the Division Court bailiff" The sheriff also brings in creditors who have executions agamst the debtor's lands only, when he has seized goods, imder another creditor's writ against goods" In Ontario, under a special provision, the court has dis- cretion upon a sheriff's interpleader, to allow other credi- tors who desire to take part in the contest, a reasonable time m which to place their executions in the sheriff's hands, «. hat they may join in the proceedings, upon such terms as to costs and otherwise as may be just and reasonable." FnlST^'t *"" 'cUi««t..> ^ Claimants, under the English prac^ce, mean, all parties to the proceedings, and not merely claimants in the more restricted sense, a op- posed to execution creditors in sheriff's cases." But a daimant who sues one of the otter claimants, and does ;ot luake any claim against the stakeholder directly, is not a r-on^who can be made a party to the interpL'ader Tro an ^Z.uJ^'^K^' '" *^^ '^"^y «^ » «J«i™««t' >-hen an interpleader is applied for, to take h*s position squarely, Wat'u ""•Sowen ni^V I?**®>V" "P"^' C.n.d. Q. B. 350- -».8.0iit.l887. c. 78:.. 4fl5K •A^?Ji. ""«■ <^^^>' »» Q- B. D. p. 148 \ 102 THE LAW OF INTEitPLEADER. » ill ' I i ! with respect to the nature of his claim, and either to stand upon his right to the money in question, in which event an interpleader will be granted, or to withdraw the assertion of the claim, and thus to relieve the applicant of the neces- sity of bringing him in.»« The claimant in a sheriff's case must specify the goods which are claimed by him.*^ The Crown. — That the Crown might not be a claimant under the English Interpleader Act, was decided at common law, for the curious reason, that, under the Act the court could award costs, which it will never do against the Crown.** In an early Canadian case, a sheriff was refused relief, where goods levied on were claimed by the Crown, because, as was stated, a claim by the Crown could not be barred, and consequently an order would be useless.** The English rule in equity was different. Where hold- ers of a fund found it claimed by the Crown and by a rail- way company, they filed a bill of interpleader. It was op- posed by the Crown, on the ground that there was no prece- dent for the Crown being called upon to interplead. The Vice-chancellor in giving judgment said: If the Crown was adversely claiming against the stakeholders, they had a right, when other persons were also claiming the same money, to file a bill of interpleader, and to make the Crown a defendant to the bill, because the Crown was one of the parties who were vexing them. He should not hold that tJie Crown was an improper party, and made a decree that the Crown and the railway company should interplead.*' There being clearly a conflict or variance, between the Bule of Equity and the Rule of Common Law on this point, the Rule of Equity must prevail under the English prac- tice.** The Ontario Rules relating to Crown actions pro- vide, that the procedure and forms, for the protection of " Butler V. Atlantic Trnet Co. (188e>. 68 V. Y. 8. 814. " Price V. Plnmmer (1878), 28 W. B. 45. " Candy r. Maugham a848), 1 D. ft L. 745. ■ McOee ▼. Balnea (1857), 8 Upper Canada L. J. O. 8. 161. "Beld T. Stearn (1860), fl Jur. N. 8. 287: and aee Brrington v. The Attorney-General (1781). Bunb. 808. " Bn». J. A. 1878, a. 25 (11); B. 8. Ont. 1897. c. 61, a. 58 (18). ■I - THE CLAIMANTS. 103 claims to property, between subject and subject, shall be used in like cases, for the protection of claims, which her Majesty may have against any person for any property." The United Stotes—The United States may be a claim- ant m interpleader, and it is proper to substitute the United States as defendant in the applicant's place, when the other claimant has sued.»» Huband and wife.-It would seem that a wife may be an adversary claimant, when husband and wife have sepa- rate property rights." Relief has been awarded in the fol- lowing cases: Where a woman, while unmarried, deposited money with bankers, and afterwards sued them for it a third party also claimed the money, alleging that he was the woman's husband, which she disputed ;»» and where a married woman lodged a sum of money in a bank in her own name, representing herself to be a widow, and her hus- band and a transferee from her both claimed." It is a frequent occurrence in sheriff's cases, for interpleader orders to be made when goods seized under process against the husband are claimed by the wife.*^ The Massachusetts Code provides, that a defendant may interplead when the subject of the suit is claimed by an- other party than the plaintiff, whether by the husband or wife of the plaintiff, or otherwise.** In Ontario, when any question arises between husband and wife, as to the title or possession of property, anv cor- poration company, public body, or society, in whose books any stocks, funds, or shares, of either party are standing, may apply by summons or otherwise in a summary manner to a judge, who may make such order with respect to the " Out Rule 238. ■Johiiwon V. Stlmmel (1882). 26 Hun. N. Y 438 nSS.f'Tnll^l'in''' '' ^- ^•- ^= KoppioS?'.. O-Donnel. -Crellln r. LeyUnd (1842). 6 Jur. 788. -Co«telIo V. Martin fl867), 15 W. R B48 7H. ft N «?Sf i!T^il?^'/^ ^'^■' l"'""^' ^- H"'* ^801). dian *T >J;;?Onl.*tTO *"' "^""^ ^' P«<"" (1«>1). 21 Cn.'- " Maw. Act of 1^6, c. 281. 104 THE LAW or nrrERPLEADER. Ill IL I m m ¥■ f property in dispute, and as to the costs, as he thinks fit, and any person so applying shall he treated as a stake- holder only.** Prior to the Married Woman's Property Act, when a married woman claimed goods seized by a sheriff, and the latter applied for an interpleader order, it was necessary that the husband should be served, and an order would not be made in his absence.*' Children.— Where it was admitted that certain life in- surance moneys belonged to all the children of the same parents, the plaintiffs sued for the money claiming to be the only lawful children, while another child who claimed, was alleged not to have been born in lawful wedlock, it was held a case for interpleader.** Exeentor or adminiitrator.— The representative of a de- ceased person cannot be a claimant, until he has been ap- pointed administrator,** or, on the same principle, if there is a will, until as executor he has taken out probate.** Tnutee. — A trustee may be a claimant, and the claim of a trustee of a settlement will not be defeated because of the non-joinder of a co-trustee;** sometimes the cealui que trust is added along with a trustee claimant.** Cettni que tnut. — A cestui que trust in possession of goods, has a sufficient interest in them to maintain a claim, in an interpleader issue, without joining the trustee in whom the legal estate is vested.** Interpleader has also been al- lowed where money deposited in a bank by a trustee in the name of his cestui que trust, was demanded by both.** An infuit. — An infant party may maintain a claim suffi- cient to found an interpleader. Thus, a sheriff has been held entitled to an interpleader order, although the claimant was •• R. 8. Ont 1807. c. 168. a. 19. * QourUy v. Ingram (1889). 2 Ont Chy. Chamb. Ml « Koenig V. N. Y. Life (1888), 14 N. T. 8t Rep. 260. **Padil«7 v. White (1881). 38 L. I. Pa. 82. « Burke y. Ratiedgf. (1881), 8 Ir. Jur. O. 8. 148. •• Bradley t. Jamea (1876). 10 Ir. R, C. L. 441. '■Leedom v. Zierfum (1888), 3 Del. Pa. 129. "llohwiMelf T. Hanrott (1878). 28 L. T. N. 8. 704; Cionnel) v. Hlckock (1888). 15 Ont. App. 818. *' Rahway Saving* Inttltntlon v. Drake (1874), 25 N. J. Bq. 220. [tg i > 3 ^L THE CLAI1IANT8. 105 an infant. It was said, that if there was any difficulty it was one which arose between the litigant parties ♦• It k only when the infant claimant becomes an actor that a next fnend is necessary, as when he becomes plaintiff in the issue directed,** Bdi^ou iociety.-Where a trust was created for the benefit of an incorporated religious society, and there were two bodies, each claiming to be such society and so entitled to the trust property, interpleader was aUowed." A receiver —An official receiver may be a claimant, thus, where a certificate of deposit was claimed from a bank by a receiver appointed at the instance of the depositor's credi- tors, and also by a present holder, who took it after the T^cener had been appointed, the bank was allowed to inter- undfr^*'^'' ^-^^«"«y-An assignee in insolvency, or Sen" '"''* '' "^'"^"' ™*y ^ ^'^"-"ts in intfr. in it *^^*^'~^ ?'"* ""^^ ***' *"*«'*«^ the subject matter m the hands of the stakeholder, should be brought in as a claimant, when a third party has made an adverse^demand ;" but, when a sheriff holds attachments against property held that^t^ "^T "*^°° "' ^"*«^^^-'-' ^* '-^- A !^u Z '°*''^*' """^ " ^°* » ^««««««^ party." A ereditor.-When a debtor is seeking relief by way of iuZif "' ^i'' ^"P" '"^ "^-^^ ^'^ «- creditor a^rty oln^^-.'" .?V' P'*'*'"" '^'^''« t° ^ ««ditor8 of hil own creditor." But, it has been held, that before a credito" ••Fhif pILw^JJ'' <^^>' 1* Mm. 348; 14 Oantd. L T 288. (1887). sTsol. J "«. ^^' ^ «•• ■*«! «• •«-o Parkl« t. Hollwd " See chapter XI, loe THE LAW OF IMTERPLEADEB. iPr can be a claimant, he must have taken proper steps to estab- lish the legal existence of the debt owing to him.** In the Scotch process of multiplepoinding, a creditor has no title to claim funds in dispute, as to which his debtor has right, except by way of a riding claim upon a claim lodged by his debtor." Execution debtor.— The execution debtor may be a claim- ant on a sheriff's application, when he claims the property levied on, not in his own right, but as a trustee for another, notwithstanding he is the person against whom the process issued;" otherwise he has no right to be heard, because the resul^. can establish nothing to atiect his interest." Where an execution debtor claimed to set off a judgment, which he had recovered against the execution creditor, it was held not to be such a claim as entitled the sheriff to relief."' But where the execution creditor has been paid the amount of his execution, and a balance remains, the debtor xay be a claimant in respect of such balance." In Pennsylvania the debtor is made a party as a matter of course." When the debtor claims the goods seized, as his exemp- tions, the sheriff cannot interplead. It has been said by the Court of Appeal in Ontario, that the sheriff in seizing exemptions does a wrongful act, he acts at his peril in granting or refusing exemptions, and the Legislature has not thought proper either from inadvertence or designedly to extend to him the right to interplead in such a case •» The Manitoba and North-West Territories Bulea provide V N?"S,Xlil''T"/i' ?^^* 2 ^^^- * »• N. Carolina 86: Venable «i^i\v^^ ^'"^ Inaurance Co. (1882), 40 N. Y. Sup. Ct. 481. ^ our. Trustee r. Patrick (1889). Ct. of Sewion. 16 B. 408 y iZTrl^^ 9 ^'^r^^^?**^'. 2 Q- B. 108: 6 Jur. ©41; Philby - Kn- ^8a?„l';^}iTA Vrx ""z^'^ ^- '• ^- «• '''■ L«;e°(^I l6 KiT'68" ''- ^- ^•■«- '''' ""^""^^ - ** Sm Appaodix. V H^^^ '/iST S^^' ^ ?.°*- ^PP- 3*7; but aee Central Bank THE CLAIMANTS. jq^ ttf JLt'f T ^"^^'T''"''^' ^''«° the debtor claims that the goods levied on are exempt from seizure" A p«rtner.-\^-hen a partner claims goods belonaa der Kan v. Ashworth (1884). W. N. 58; Crpdits 0«randenae v. Van W«€de (1884), 12 Q. B. D. 171; B«;hirer v. MorriacMi (1890), 6 T. L. R. 145: bat see Patroni v. Campbell (1843), 12 M. ft W. 277. "Van der Kaa v. Ashworth (1884). W. N. 68 rwl^7!SLT- Cr««ier (1898), 27 Ir. L. T. B. 81; City of Dublin v. Cooper (1899). 2 Ir. B. 881. " Union Bank v. Tnttle (1889). 16 Victorian L, B. 268. , Z^'^Z'^i.^.^^V^^^' ^^ *^"'"^" L. T. 890 (Ont): Bdwarda Tii^^SJ?*?,^^^*'," **"*• P'- ^^' »"•* •«« ««•«»» Re Mutual Life (1809), 19 Canada L. T. 362 (Nova Scotia). "North Brittoh BaOway Co. r. White (1881). Ct. of Session, 9 " Credits Gemndeuse v. Van Weed (1884), 12 Q. B. D. 171. » Bschrer v. Morrison (1880), 6 T. L. B. 146. " Attenborouth r. London * St. Katharine's Dock Co. (1878), 8 C. P. D. p. 454. TBI CLAIMAITTS. jQg It i. a recognized fact that, a difficulty exista in unhold. mg the practice, in the ab^nce of any U or sUtute ex P^ upon the service of procew upon foreigner.. It has been said that service out of the j^sdictiofis an inter ference with the ordinary course of the kw, for gene^ally c.urte exercise urisdiction only over persons who afe^Wn the territorial limits of their jurisdiction. If an I^t of Piujiament gives them Jurisdiction over subjects whtreve they may be, such jurisdiction is valid, but apart from I statute, a court has no power to exercise jurisSf^ion oveJ JuTZtt'f*^"™'*"- ^*^*---4ly been pointed out, that the decisions on this point, may perhans be «nn ported, on the ground that the obje;t of'i^ice'lsttl gi.e jurisdiction over the party served, but only to rive Lm notice of a proceeding affecting his rights, so [hat he m" If he please, come in and defend them." This vkw h^ not always been considered sound, for notice of inteileade^ pnK,eedings asserts an absolute right, in the tribunaTwWch gives the notice to deal as it chooses with the property to which the interpleader relates." property to Hphf "* *PP'^*'*"*; ^'^^ '^^ded in New Jersey, and owed a debt payable in Michigan, to parties living in DetroU and from whom the debt was also claimed by Vrt^fvL -^ Ontario^ was refused relief upon his appl>i^ oTiiloi tii'urt^jr^ ''''' - -^-* --n- noi ^it^r; "trtnt. ill ttitario.-In Ontario, in 1897 . rul« .„ enacted .hi„hp„,M«, n.t ^^ ^'^^ 4 .UoJtrt" "Bote KB (8). "" ^*®^' " Ont. Pr. 800 ft 339. 110 THE LAW OF INTERPLEADER. i- i -f, '"i i: s i 11 \ and there is some danger of the foreign claimant suing within the jurisdiction.** If the subject matter is abrolid, and the foreign claimant has no intention whatever of suing the stakeholder in Ontario, the latter will not be allowed to serve a notice out of the jurisdiction.** It has been held in Ontario that, when a foreign claim- ant has brought a foreign stakeholder into the jurisdiction through an action, and the stakeholder then interpleads in that jurisdiction, the foreign claimant cannot then object to the interpleader on the ground that he is a foreign claim- ant, the documents of title forming the subject of inter- pleader being also within the jurisdiction.*^ Practice in United States. — The same practice prevails in the United States, of allowing service in interpleader pro- ceedings upon claimants outside the jurisdiction of the court. It has been said that, the beneficial operation of the sheriff's Interpleader Act in Pennsylvania would be much impaired, if the order of the court could not reach absent claimants;** but equity will not decree an interpleader as to parties outside the jurisdiction until they have been served.** Such cases arise most frequently, when the claim- ants reside in different States.** It has been held in Mis- souri, that, where a fund in the hands of an agent of the law, is claimed by two non-residents, and one of them makes a demand within the State, interpleader will lie.*^ If, however, the foreign claimant has already commenced an action in a foreign court, it has been held in the United States, that interpleader will not lie, because the court in which relief is sought has no power to stay the action pend- ing in the other court.** " Re Confederation Life Aran. (1900), 10 Ont. Pr. 16, 80. •• Harris y. Bank of Briti^li North America (1900), 19 Ont. Pr. 61. " Re Underfeed Stoker Go. of America (1001), 1 Ont. 42. - Moore ▼. Lelar (1860). 1 PhUa. Pa. 72. • Kildare v. ArmstronR (1886). 18 W. N. C. Pa. 114. " Leonard v, Jamison (1833), 2 Bdw. C5hy. N. Y. 136; Bany y. Equitable (1873), 14 Abb. Pr. N. Y. n. 386; WJiitridjte v. Barry (1874). 42 Md. 140; Fitcli v. Brower (1886). 42 N. J. Eq. 300. " Freeland v. WUaon (1863). 18 Ho. 880. ** Orient v. »lo«n (1888), 70 Wis. 611; Watsli v. Rhall, Kulp Pa. 483; but see Barry t. Equitable (1873). 14 Abb. P. R. N. Y. n. 386. THE CLAlMASn. uj lMldl«d.-When a sheriff has seized iroods and fho ^tlth t'^r I ''""^ '"' "°*> ^* " the'^Sff" duty realy due. to ask the execution creditor for it and unnn receiv^g the amount to satisfy the claim. If 'he ctS^or S"a5s hiAnr 1'- "**"'^'°* *»*« «'"''»' the sheriff di;t;r tha?thr V' *'^ ^^'^*"*^" but ^fTh^tx be made.- ''°* " °^^ *^ interpleader order will arreJ?"'^ thatT^r 'i^""'' P*^' *^« ^'"^-'^ 'e°t in is "titird?oiXr/i^^^ s *'^ T^«- -<^"- such advance as a "dfag" V "'""'^ °' *'« «-«^«' Where a writ of fien facias had been executed an^ . return made, but before the money was nlS^ . execution creditor, the landlordTfthJ!^/ f '° ^^^ claiming a year's r^nt ^ T « ^^*'"' '^'^^ « "o^ce A l3i !, *® *h*"* '^^^ a"o»ed to interplead •• '•ppen. upon a sherir. .,,*!„ j <'™»)— It frequently On*, flui. "' ^- *^- *i>- Maclean v. Anthony (1884), 8 DowI.^Vb.'ry'S' ^ '*"^'- «= «'^'"»"> ^- Bn.h (1834). 2 :^"™ .re «>ld under .n in. ten.le.de, order b, the Aeriff .nd the proeeedT.re "°d mto court, th.t the .hole proceed, .honfd he p id?„?^ M^ be entitled to hi. rent, if the eiecntion creditor suc- ^belt^SeTrth"'.",".' '"•°''" ■"'««" '""»'" ™be en^tled to the whole fund freed from the Lndlord', ?In jT*. ; """■ *' '"'"TkaJer order h.d been Mde the tandlord chimed hi, rent, .nd the .herisS^rf tane^hll^ °°i °' "" '"'' "«' »■•""■■' '"deeded ik'Se zifp'.Sf^r'r:::.-'"''*^ '° "^^ "« "•'-' *' ^ r.:Ls^nVTbX--Bt£i£5 tte «t»ta°:: 7f "" '^^ " ''°»' ««p' in tt« -^2 :f b.iM° f th!lLl J ■"terple.d,, he ccmm to be the t.^^:' z rr^-toXtrr" -'-^' " *- .heri?^";!.'!!^' "■ '"^^^"i" <"«" ha, been m.de, the are no longer in ^..^^ u,is, and Trr/d tay dt 202; see «l80 Lock.rt y qVS' Kf o n T*y'»V1860). 5 H. & N *CJ.irke V. Farrell nsRi? ai 1^^' ^ ^"'- ^- J- 1«3. .•White V. BlnSre;dT&.VrB ^^""'^ ^^ ^- ^- _ 'Clarke v. Farrell nR«i» qi r^" ^" Osier. J, MaCeanT'liZi aS^JToSSl" ^^ ^^ "• «««• «-' ii.t.1. m 114 THE LAW OF INTERPLEADER. \f 4 • -• ' ■ i train upon them, although he knows that the interpleader proceedings are still pending.^ After an interpleader order had been made, and peniUng the trial of the issue, a landlord claimed his rent, and as the execution creditor would not furnish the rent the shjriff withdrew from possession, at the instance of the shiriff, the court made an order setting aside the issue and proviied for his costs.* After the trial of an interpleader issue, the sheriff Is not entitled to a second interpleader to test a landlord's claim, when the claim for rent was made before the first application, and might have been brought up then.* When landlord in poMeuion. — A sheriff canndt inter- plead, when the goods in question, are, when seized, in the possession of a landlord's bailiff under distress for rent, for they are then in custodia iegis, and cannot properly be taken. ^* But where an execution creditor suggested fraud and collusion between the landlord and the debtor his ten- ant, the sheriff was awarded relief although the goods when seized were under distress." It has been suggested in Ontario that, if the goods are a stranger's, the landlord's duty is to distrain even although taken by the sheriff, because if the goods are not the pro- perty of the execution debtor, the sheriff is a wrong-doer, and the goods are not in such a case protected by the ex- ecution." If this rule is followed, certain difSculties arise, for how can the landlord determine at the outset whether the goods belong to the tenant who is the debtor, or to the stranger claiming them, as that is the very question to be tried on the issue; and how can the goods be distrained, if they are under seizure, and so in custodia Ugis ? It has also been said that, the right of the landlord to compel the sheriff to make the rent depends on the legality ' Cropper v. Warner (1883), 1 C. * B. 162. • l4iWBon T. Carter (1894), W. N. 6. * Clarke t. Farrell (1880). 8 Ont. Pr. 284. » Craig r. Craig (1877). 7 Ont. Pr. 20». " Took* V. FInley (1821). Bowe Bep. 428. '• Clarke T. Farrpll (1881). 31 Upper Canada C. P. p. 599, pet Wilaon, O.J. ™E CLAuuirra. ... of the seizure, and when the execution ... - • . , get's goods, that is awinst th« '» a«««n8t the stran- ant, and it 'turns outT^t J t 'ofTe ")'' '^ °°' *'« *''°- that the goods are subi^t to 1. ;°*«T'«ader contest belong to the tenant, t^Hand o'^ ZtZXt "'" ""* ca« have hta rent out of (1,» .. "" """rtWcM m tuch -moHme. claim in . /«.ltp.ci,f "h^ f Tl""^ allowed to interolead wIiP,.a ♦». ^^"y- ^""8» a sheriff was by the official a! ^el o/an X ^^'^f ^ -- claimed was also assignee 7JZ Ts a I' "and >' ""^ *''*''"'^°' that a question would arise a to whn ?^"''' ''"^^'^ entitled if the claimant succeeded um "'' ^'""^'^ ^ execution creditors desired thnwi, , ' °°*' "' «*'^«™l inten.leader should su^^eS b„t if th r°* '"^ * ^'^^'^'^ that such creditor shouTd n«r« '' t '^"™"°* "'^«'^'i M held that such creditor CaTr^/'*'^ *?« «*»•-' it waa' pleader proceedings." ^ P*" P'''*^ *« the inter- Two cWaanti bat m oonfliet-lf th« * ^.- elaunjnts re 'ly cl^im for and on behajf of /^ '^*"*"* «on, there i ^. ,. pi„,„, ° . "^""'^ <>' the same per- pear^, after an inte«,leadVr o^" w ll "''" "i*'*"*"' "P" an issue, the issue mav hi „ ^'^^^^^ ,been made directing party, and thisTethe^th^ i'rK '\^^ ^"^"'"^ h'"' " • or not. Thus, Tere J^ul? ^"^ ^"^^ ""-"^ ^"-a^^ "P fenced pending tTeria^^^hfr^P'^^^^^^ ^"° *=««- amendment of Ihe issue ;« J *? "' ^'^^ ^«^t«' ^as by eided this said.J-I Ts Tdm tJeJ"/,f\ J'^ ^'"'^« -''« ^'^ finally drawn up parties mTv bo 'f,*??'''' '^' '""« '« practice. But it is s« d fhTf^^K "^"^^ '^** " ^^'^'--y day ''no. of no such aw and . 15 '!""' '^ '''*^'™^-- ^ practice. An ordor^o! an Le'T .' "1' '' ""' ^^^^'^^^ ^ «e the right of the pa ^7^7,^^^^^ -t itself P.. 81. " '"• ^o. . Con«„M,ted Mfg. Co.. 34 W. ». a 116 THX LAW OF IMTKBPLSADEB. ' t cided. To refuse to make this order would be giving effect to a technicality.*'" A defendant in an interpleader auit was allowed to file a supplemental bill, to bring a new de- fendant before the cotuct, without making the parties to the original suit parties to it, as a plaintiff in an ordinary suit might do, because after decree a defendant to an inter- pleader was said to stand in the anomalous situation of plain- tiff as well as defendant^* In the Scotch action of multiplepoinding, new claimants are allowed in after the matter has been decided between the claimants at first competing, even after final decree, so long as the fund is still in court, but upon terms, and pay- ment of the expenses incurred, which will not be available for the subsequent stages.** A person who asks to enter at a late stage may have to pay all or a proportion of the ex- pense incurred, if it can be shewn that his late appearance was caused by his own fault, or that he stood aside while other parties were fighting his battle and then seeks to benefit from their labours. But a claimant who was in Australia, and who did not know of the proceedings, and who claimed as a life tenant, was allowed in without ex- pense, the prior claimant claiming the fee, no additional expense having been caused in his absence." It frequently happens in sheri^s cases, before or after an interpleader order is made, that a new claimant appears and lays claim to the goods or their proceeds while still in the sheriff's possession; the court, if the sheriff has acted proper- ly, will allow such new claimant to be brought in, and if an interpleader order has already been made, will make the necessary amendment.** Where a sheriff had sold goods under "Bird T. Mathewi (1882). 46 L. T. S12. "Lyne t. Pennell (18B0), 1 Sim. N. 8. 118. _ . . .„ "Geikle r. Morris (1888), Ct of Sewlon, 20 D. (H. LO 12: Stodart v. Bell (1880), Ot. of B««Iod, 22 D. 1002; BInnle r. Henry (1888), Ct o* Session, 10 B. 107B; Cowan's Trustee r, Oowan (X8S»U Gt. of Session, 16 B. 17. -Sawers t. Sawers a888). Ct. of Session. IT B. 1. " Kirk T. Clark 0835). 4 Dowl. 868; Walker t. Ker (184.1), 12 li. 3. Ex. 204: Macdonald t. Great N. W. Central By. (1804), 14 €anada L. T. 284: 10 Man. 88; Bryce r. Kinnee (1888), 14 Oat. Pr. WO. THE CLAIMANTS. 117 an interpleader order, and had a surplag in his hands over the execution creditor's claim, an inferior court creditor claimed the surplus, and had the order amended by direct- ing an issue between himself and the claimant to abide the result of the first issue, the order was made because all parties were before the court, and because it was said that a 1i^ "****'' dismissed, the sheriff might immediately have SiibrtitatiaB of new «Uiiiuuit.-A new ckimant may be substituted, when a claimant already before the court de- sires to retire, and that, whether an interpfeader order has almdy been made r not;«« as where the new ckimant paid off the claim of the first, and took the latter^s position.'* CUinMt a poaition when reUef refnsed—WThen a sneriff's application is refused, the claimant cannot complain. It can do the chiimant no possible harm, because it does not affect his title to the property, nor prejudice his right of action for the seizure.** "?•■*" ▼• Conilrii 0881), 1 Canada L. T 188 11:1 f I' CHAPTER V. THE CLAIMS. tai Two adrerM elainu.— The foundation of the right to interpleader is the fact, that the person applying for relief has received a second claim adverse to or conflicting with another claim, previously made, to the same subject matter.^ The foundation of multiplepoinding in Scots law is the same. In the original conception of the process the proper ground was double distress in the strict sense of the term, or in other words competition created by rival diligence v execution. But in later times it has not been thought in- dispensable to have double diligence, but double claims to the same fund have been considered sufficient. It is still however necessary to the validity of the action, that there should be a true case of double claim to one fund or pro- perty on separate and hostile grounds, not a mere ostensible case got up in order to try a question of debt or obligation between two individuals, the proper mode of trying which is a direct action.* The following have been held competing claims equiva- lent to double distress: — Money paid into a bank by an independent congregation for the erection of a chapel, » Davis T. Darin (1898), 86 Ga. 186; Bracket* v. Graves (1898), aO App. DIt. N. Y. 162; Biownins t. Watkina (1848), 10 S. ft M. (Mtsa.) 482; Cahoon v. Levy (1854), 4 Gal. 248. ■ Buaael t. Johnston (18S9), Ot. of Session, 21 D. 286; Moncrieff V. Bethone (1844), Ct. of Session, 6 D. 11(X>; Garmichael v. Todd (18B8), Ct. of Session, 16 D. 473; Great North of Scotland By. v. Oanld (1868), Gt. of Session, 1 Macph. 10B3; Gonnell's Trustee t. Camlk (1878), Ct. of Swwlon, 5 R. 8T5; Mackenale t. Sathertand (1806), Ct. of Session, 22 B. 288. THI CLAIMS. 119 elaimed by two factions, a split having taken place in the con^gation;' the value of crops in the hands of an incom! mg tenant when claimed by the kndlord and a creditor of the outgoing tenant- a bUl and cheque in the hands of a law agent for coUection, when claimed by the client's as. signee m bankruptcy, and by another person who had at- t'^ ^k"""' TVl ^° * ^""^ '''"•'"^d ^y «^ »"«ged donee and by the next of kin of the deceased depositor/ How eTidoiced.-A claim may be evidenced by the leijal proceedmgs m a suit against the -akeholder, or by a de- mand either oml or in writing. Fnder the English prac- tice m sheriff interpleader, the claim of the thid pe "on on ftie sheriff must be made in writing.* ^ Veed not be ned in eqnity.-The rule in equity is that the pkinti: .ay maintain his bill of interpleader Ll„l^ he has not .ually been sued, or has been sued by one only atta^e!!^"*"^ ''"'"''"*'' '' ^ ^'^^^^^^^ «> W " claim! Act^f'mi^TT~'r/'^^'''^'' °°^«' *^« Interpleader Act of 1831,» rehef could only be had by a defendant in an action, he was rer.uired to show that the subject matte^was cl^ed or suppo. ' to belong to some third par^ Z ^1^1^"^:"^ '^'^"''^^ "'^ •"'tio^ J^-d been brought agamst him," aa weU as after an action had been brougSf » 290. W5S,? 2Srtl;r«^„^.<^> f ?^'oa. 20 B. Logan y. Wllkie (18B6> Pt ^f "^'f^ "? *'"''»»'« dlitrewi: See Campbell (ISTO), Ct. onLifon 1 . ^'°"A. " °» ^^ ^lark^ Ot. of 8e«.;on, 1 P. ^j ""•' ^ ^- 281; Olaa. v. Bobertwn (1890). MtnlSTasie). 2 Meri/ m'Ri^h^^"- "^"S-."- 2«: Morgan v. ;^. Bell (1852). U Ga. 108- NewSS i' i^/ ^''V^^.J- "= ^t™"** J^l 4 2 Win. IV.. c. 58. Booth T. Preaton (1860), 8 Ont. pTb: 90. m 120 THE LAW OF INTKRPLBADER. and although he might have pleaded in the action/* but on condition that he pay the costs of the action. In 4873 provision was made so that debtors and trustees might interplead although no action had been commenced,** and since 1883 the same rule prevails with r^^rd to all classes of persons, who may interplead when they have been, or expect to be, sued by two or more parties.** United Btatai Statntet.— In the United States, under most of the codes, interpleader can only be had by a defen- dant in an action. The codes, however, of California, Idaho, Montana, Utah and Washington allow relief in cer- tain cases when the applicant has not been sued by either party." In New Y' *1 «■• 1085 Burton t! T. G.2^^,."e" w" yrJS:^ ^''^^' * «"• <"^- «»= «»» «™ L siH. n *^' ^J^\^ ^- P- "»: Bird ▼. Orabb (1881). 80 L J L. i^B? UISi' <^**>' ^^'"- 8"5 B-^J^V. Pope a868). (187B) I^ » in n i> aIk i «» ■»" v. r. km, unKelback ▼, Nixon « I?'' T* *• *^z.^' *^- 8*8 Jenninca t. Mather (1901> 1 O B int. "^ 122 THK LAW or INTEBPUEADIR. 3W« rule i> also followed in Massachtuetta, where it has been held, that the statute of that State ia broad enough to cover equitable rights and interests." ClaiBi mut b« wmaacted—It is a prime rule in equity, that the titles of the adverse ckimants must be connected, by reason of one being derived from the other, or by both being derived from a common source. There must be privity of some sort between all the parties, such as privity of estate, title or contract" It is sufficient, however, to found the nght to interplead, if one claimant has, by his own act given a color of title to the other." In the absence of facts which show one thing or the other, relief will be refused " In cases, therefore, of adverse independent titles, the party holding the property must defend himself as best he can, and is not entitled to the assistance of a court of equity to relieve him by awarding an interpleader.*^ Effeot of rale.— This rule has worked considerable hard- ship on many persons and corporations, who, in the ordin- ary course of affairs and without any fault, become through some contract lawfully possessed of property, or liable to pay some debt. It has affected particularly tenants, and mimy classes of agents, such as bailees, consignees, factors and earners. Such an one, finding himself harassed by a Mml^^^^ ^' ^V^ ^""^ C*n* BmrlutB Bank (188«). 141 U?^-. . ' ^'S"* ^- National Life Insurance Go (18071 imM... (1807). 18^L^T„„°!^* <17**>' 2 Ve. Jnn. 806; Clark r. Byne 112 Al. «n«.* w ?• ^^vJf^'* ^aH*"^ ^^ Coal ft By. Co. (1806). SlSinr asm nMV.^™^"i"°"'"S '■ K"'*" « "•""r THE CLAIMS. 128 third party, claiming the property or debt in a manner para- moimt to the contract, is left to answer both the contract and the adverse claim as best he may. The court* have sometimes resorted to logical expedients to explain why this rule should be followed. It has been pointed out that, it would be a great injustice if there were a loop hole through which parties might evade a deliberate covenant, by procur- ing third persons to set up claims. In this argument it seems to have been considered more in the interests of jus- tice, that the debt, or property, should be rendered in pur- suance of the contract, than that the debtor or stakeholder should be reUeved of his possible double liability, and of vexatious litigation." In an early decision it was said, that the alarming consequence would be, if a contrary prac- tice were tolerated, that a tenant in possession, whose dutv IS to stand by and defend his landlord, would become the instrument to betray him.»» Cmm in whioh reUef refused. — The foUowing are ex- amples of adverse claims in which interpleader has been refused: a tenant seeking to have his landlord interplead with a stranger to the lease;" an agent asking to have an interpleader between a third person claiming paramount to or independently of his principal, and the latter;^* a pur- chaser of goods, from whom they were claimed by the ven- dor on the ground that they had been obtained by fraud, while two others also claimed them, one in virtue o'. a lien for freight and a second on account of advances ;«» a town- ship treasurer to whom a drain tax was paid under protest, where the tax was claimed back by the person who paid it, and by a person to whom a township order on the trust fund had been given;" an auctioneer who had sold goods for a chattel mortgagee, the proceeds being also claimed "Cook T. Earl of Rouiyn (1869), 1 GUT. 107. DaiiRey v. Angove (1789), 2 Ves. Jun. 303. H«ndcock y. Shaea (ITOl). 1 Collea 122. Horaby r. Oordoo (18«K). 9 Bosw. N. T. (58& "Wallace r. Sortor (1883), 82 Mich. 189. IM THX LAW or Iirmu>LKADKR. by «n anignee in bankruptcy of the mortgagor,-** a bank which had coUected a draft for a ciutomer where the pro- ceeds were demanded by the costomer's executor, and a third party who alleged that the customer was his agent;** and a person from whom a commission was claimed by two real estate brokers, under independent contracts.* CasM ia wUeh rdief awmrfad.— The following are con- nected claims in respect of which interpleader will be al- lowed: Where a third party ckims of a tenant, the rent, as assignee or mortgagee of the landlord ;»• when a princi- pal creates the adverse title by an assignment legal or equit- able, or it is founded by operation of law, as in a case of bankruptcy, the agent may caU on his principle to inter- plead with the assi^ee." So, where the two claimants originally make a joint deposit, and afterwards both claim the subject of it.** date of time cUimi.— When there are three claimants, and the claim of one is paramount and adverse to the claims of the other two which are connected, one of these ktter two cannot object to the right of interpleader, because the claim of the third claimant is adverse.** View of doetrine in TTaitfld Stotw.— In the United States, the rule ha? been looked upon as narrow and inequitable. Story, in discussing it, questions whether it might not have been more wise and more consistent with the principles of equity, to have held that, in all cases when the bailee is innocent and without any fault, he should have a right to a biU of interpleader.** Pomeroy regards the rule much in the same way, and says that, it is a manifest imperfection of equity jurisprudence that it should be so Umited. A -S55P.*'!?"** ""• ^'"y <^^^)' * I'- »• C. L. 600. Tii!^ N«tlo«»«l BMik r. Skilliiiga (1882). 182 Maw. 410. • McCreery t. Inge aOOO). 40 App. Div. N. T. 138. mnS^Tm'/^^r^l'f^ * ^"- '""• '""' ^^^ - >'- 6T Ho^^TV^i'gl'X.^i^i.fS^^^^^^ -NolMi T. London (1880). 6 N. 8. Wate. W. N. 127 •Farebrotter r. Beale (1840), 8 De O. * 8m. 637. "Story's Bq. 3m. aec. 819. THK CLAIMS. 125 penon may be, and is, exposed to danger, relation, and loss from conflicting independent clainu to the same thing, as veil as from claims' that are dependent, and there is noth- ing in the nature of the remedy, which need prevent it from being extended to both classes of demands.*^ A New York judge has recently remarked that, while the early authori- ties were exacting upon this subject, many of the later cases have been less rigid, and some hare ignored it altogether, and he points out that the doctrine has been abrogated in England by statute.** Doetrint abrogated by statute.— In England, doubts were entertained whether the Interpleader Act of 1831 applied, when the titles of the claimants had not a common origin, but were adverse. To remove this doubt the Common Law Procedure Act of 1860 enacted, that interpleader should lie though the titles of the claimants to the money, goods, or chattels in question, or the proceeds or value thereof, had not a common origin, but were adverse to and independent of one another.** This provision is continued in the present English rules,** and is now in force in Ireland,** and is applicable to all cases of interpleader. In a few of the American States, namely in California, Idaho, Montana and Utah, a similar provision has been enacted, that relief may be had although the titles or claims have not a common origin, or are cot identical, but are adverse to and independent of one another.** In Ontario this provision was introduced in 1869, in the case of interpleader by bailees and carriers,*^ but it only became applicable generally to all cases of interpleader by "Poineroy'B Bq. Jur., sec. 1324. "Crane v. McDonald (1890), 118 N. Y. 648; aee also Schuyler V. Hargona (1866), 28 How. Pr. N. Y. 246. « 23 ft 24 Vict. Imp. c. 126, a. 12; Meyhell v. Angell (1862), 32 L. J. Q. B. 14; see alao Scott v. The Midland Ry. (1831), 2 Ir. C. L. R. 8a. "Order LVII, rule 3, aee appendix. *8e« under Ireland in appendix. "See Wells t. Miner (138R), 25 Fed. appendix. "33 Viet. Ont c. 17. Sep. Gal. 533, and M. THl LAW or INTEHKLEADn. the rales adopted in 1888." In the other Canadum Fro- vince., where the EnglUh Judicature Act haa been enacted «ii8 Mine rule is in force, namely in Nova Scotia, Prince' Edward Island, ManitoU, North-West Territories and Brit- ish Colombia.** dam, dicdd be i.T«tig»t«l._A person on whom cUims should, before coming to the court, make some inTestiga. tion himself with regard to the nature of the claims, w tLt ho may be satisfied that he is really in a difficulty; for one who can by ordinary diUgence inform himself to which of the claimants payment should be made, cannot maintain interpleader- for it excludes all cases where the rights of the parties are clearly «.ttled." If therefore one of the claims be either obiiously good or bad, as will presently IS ;^*;?«'^«';.'^" «»* Ue, therefore, to pVevent a d^missal of his apphcation the person seeking reUef should lirst make a careful inquiry. to ^ ■^*^** inqiiire.-it is also the duty of a sheriff to make some mquiry, as to the nature of the claims, before sheriran ^r^"' °--«* *« ^ "P^'ed all troniir^d sheriffs applications are not to be considered as a mitter of course. When the right of the execution creditor^? ^J teYn^ tTL"; "'' r? *'' "^"^ ""^ ^ easily 'ascer- tained the law does not intend the sheriff to be relieved trcourt' f""!r ""'' """' ^'"'^«°*' ''^ application o It wr.K ^°V°^'°^**y ""^" *^« Interpleader Statute" It was the rule in equity, that the sheriff should have some the debtors. It is a fair presumption that goods on the "Ont Rule 1105. II See In appendix. more (1864). 18 Abb. Pr N Y blT ^^= ""<' «*« Morgan v. Fill- '^^O^'^'^lt^cS'^^c'^:^,^^^ ^VaUrer v. Nl,e. itt^i. AIMS. 127 debtort premiBM belong to him, yet it i« quite couistent with th«t sUte of things, that they may belong to another " fcbrnit dalB to othor didrnwl-It i. a reasonable pre- caution for a atakeholder, to inform each claimant that there w an advene claim. It may be, that one claunant will abuidon If he know, of the other ckim, and the apparent difficulty will disappear. It haa been held that, a aheriff could not file a bill of interpleader, until he had informed the judgment creditor of the adverse claim, and ascertained whether the latter cUimed the goods, or would give them up." * A sheriff who seeks interpleader without having taken this precaution, may find on the return of hU application that the execution creditor wiU not dispute the claim, with the result, that the application will be dismissed with costs payable by the sheriff." In EiiiM and Ontario.-Under recent enactments in England and in Ontario, a sheriff is obliged to submit the adverse claim to the execution creditor, who must then within four days in England, and seven in Ontario, admit or dispute the cUim. It was held under these rules that the sheriff could only interplead, upon the creditor disput- ing the claim, or upon his faUing to answer one way or the other;** but now, by subsequent amendments in both countries, the sheriff may still be protected against actions, when, after seizure, the execution creditor admits the claim- ant's title." Solieitor instrooting sheriff.-A sheriff should remember that notice of the cUim is to be given to the execution creditor, his solicitor is not mentioned, and, as in the ma- jority of cases, the sheriff has to deal with the solicitor, he Z'^u'"' ""■ J?""**"* «859), « Jnr. N. 8. 116. "Dalton V. Pnmc-ii. (1866). 35 Beav. 461. B.nlr\irr ■■ ^- ^■"' ;2 ^^^^' 28 Sol. .T. pp. 411, 616; Canadian Eng. Order LVII.. Rule 16 A. Ont. Rnle 1115. 128 THB LAW OF INTBRPLEADIR. ill I ■ , M , should also remember in Uking inBtructiomi, that a Bolicitor retained to collect a debt, is not entitled to interplead with- out a further retainer for that purpose, because proceed- ings in interpleader are substantially a second action." It has also been held, thot an attorney has no implied au- thority to give instructions to a sheriff to seize particular goods.** Where notice of claim was given by a solicitor, and the claimant did not appear on the application, the court only granted a conditional order, to be served on the claimant personally, calling on him to show cause why he should not pay the costs." What BBit b« ikown to the eowrt.— The person see king relief must state fully and specifically the facts which show that two adverse claims have been made upon him, so that the court may see, that the claims are of such a character, and sustain such a relation to the fund, as to make a fit subject for interpleader. It must appear that there is a question between the two cliamants, and the court is bound to see that there is a question to be tried.*' The facta will be set forth in the bill of complaint or other pleading, when an interpleader suit or an action of interpleader is begun, or in an affidavit when the application for relief is in u summary way under an interpleader statute by petition, summons or motion.** If the claims are not set forth with as much accuracy and particularity as could be desired, it must be recollected that the party seeking relief is not a claimant to the fund, lie only sets out the claims as exhibited or made to him. nMT."?ww!* J- Bible (1888). 12 Ont. Pr. 482; JamM r. Rlcknell riHs'^wfrt '■'m'',/«J!1"'1,"'?'>' ^ *-""••'" ^'- T. am: Smith r. Koal (1882) Q. B. 1>. .140; Pnnlee v. Olnxi. {im\). 11 Ont. R. p. 280. -Burke V. Biirkj. (18T8). 12 Ir. L. T. & Sol. J. BO and 88. ilS^k *1 ^* '• ^ V^' *•"""« ^- "•**" <1«T0), 7 Bn*h (Ky.>, MMa?"S^'5?VoS.''*';r ^l"^*^' ^ *»'""• •»«: BnlUmore t. Arthur (1882, 00 N. Y. 284: Vsrrlnn r. Berrien (18«B). 42 N. J. Ba. 1: (wSl. M ciTm***^' ^° """• ^' *• *^'' ^""°"" ^' ^^•"' •See (Lap. VII. THB CI^IMD. 199 «nd cannot be supponed to do it with m much accuracy m the claimantB themselves would do. It is enough for him to satisfy the court that there are opposing claims, against wnich he m entitled to protection.** , J[^\^T providence of a bill of interpleader is to set forth substantially the general nature of the claims asserted by the two parties, and it is the duty of the plaintiff to set forth generally in his petition the nature of the claims that Uve been made, so that the court may determine from the petition itself, whether interpleader is proper.** It has been said in Manitoba, that in no case is the plain- tiff in a bill of interpleader required to set out the titles of the several defendants with the same fulness, as if each of such defendants were filing a bill upon his own claim. One of the clauses usually inserted in the prayer of a biU of inter- pleader, IS, for an order that the defendants state the iwr- ticularg of their rospcctire titles.** Xtrt fMt of double olaim not .ufloiont—lt is not enough to show that two claims are presented, the mere fact of « double claim ,s not in all cases and under all circumstances the teat of the right to maintain interpleader. The posses- won of the fund or property may be of such a character as to preclude the right to dispute the title of another, or the partiea may claim the same property under different titles, not denved from the Mme common source.** Unless, there- fore, aomething more appears than that a demand has been inade, or a notice of claim served, the court will not cxer- cise Its discretion in favour of the applicant.*^ h ^*i^"''* '"fflcient, merely to sUte that eonflieting claims nave been made, the applicant must show something of their ■ Westenrelt r. Ackprmnn (188JV). a Uiwn N. J «2R J, -Connecticut Motu.l Ll,e I„,/c«. TL. (liwjT Ohio N. -KS^.r/'*'"^ ^^i*"*- 8 M«n. 480. ^1«»). M N y. B^is'" ^^^'- '^''' N- ^- 233: CoMrlff r. Hudson "^iuj" ^'"""' ^"- ""'' (1880). 40 App. DIT. N. Y. 408. I ISO THE LAW OF INTEBPLEADEB. ■I nattire;»* but he ia not obliged to produce proofs of their validity or sufficiency." A sufficient claim is not shown by an applicant, when his affidavit refers to copies of documents produced to him by a claimant, with hearsay evidence in the absence of the originals ;»• and where the applicant does not state any facts showing the nature of the adverse claims, or showing that a claim is not frivolous, interpleader will not lie, for it is then impossible for the court to say whether the circum- stances show a case fit for the remedy.^* Where a defendant merely stated, that he was informed and believed that a third party based his claim upon an agreement alleged to be in existence, and it did not appear whether such agreement was oral or in writing, nor was anything shown *f its terms, it was held that sufficient circumstances were not stated." The question for the con^-t.—After the applicant has in- vestigated the claims, and hau laid before the court the re- sult of his inquiry, the question arises, has he shown enough, or, is what he has shown sufficient to justify the applica- tion of the remedy? When he has fully stated the facts, it is for the court to say, whether the applicant would in- ( ur such risk in determining which of the parties he should pay, as to devolve upon the court the duty of exercising the discretion committed to its favour. The applicant's affi- davit is not defective, if it does not state, that he cannot determine without hazard to himself to which party the money belongs, if he did, it would be an expression of opin- ion and not a fact." It is not his duty to determine for himself which claim is sustained in fact.^* Some proof in all cMet.~No less proof is required, to entitle a defendant to obtain an order of interpleader in a "Robardi t. Clayton a882). 40 Mo. App. 606. "Dreyfu. y. Caaey (1880). tS2 Hun. N. Y. OB. "Mara y. Albany (1803). 60 Hun. N. Y. 806. " Mahro v. Oreenwick (1806), 88 N, Y, 8, 126. Z «^^ ''• Vanhome (1807), 21 App. Dlr. N. Y. 860 "ftchdl T. Low (1804), 78 Hun. N. Y. 48. P. i(,^*""~"«"* Mutual Life In.. Co. y. tea (1900), 7 Ohio N. r3 THE CLAIMS. 131 summary way, than is necessary to support a bill «. action of interpleader " ""Pport a bill or an from the follo^ig;- ' ' ""' *" " '»' » »'Ment It hu been decided th.t he mu.t .how, . colour ol riirht ID each cUimant ■" thA* M«k t ■ • ''"*""r oi nglit fomded:" .nd tt.t h! • ^ "" " 'PP^^ay weU ctateJt;- Th™ r, » 'P-""'! 0* the rights of tha he.d.r; <.e^\ riw?e&et e'L"^ "^ i.:::l't„°:;;^tSrtfro:^L"°tLrr°'"'" tag cUuM," .„d that he ha. a ,eU ZlJ^ »" "Ppo- of danger from the oo-mcttag ewlT""^ -PPrehenaion beyond ftr.SSl! :,'^Sc " Tf"'* '.° '"' ""■"'"O him to the protection of tteC„rt It i.'°J"'"' "* """" MtabliA that .nit. h.v. C!„ i, * v. ^ "«»wiry to have threatened .^ hXt'm Tt' " ""' "'""""" »w .. ' ° ^®°«f®^ prevails." „™K.VV.%'i.J£L?roiT4^^^^ N.Y.488. " Bobard. T. Clayton (IgO});,!*^' ^? "^^-P- ^ N. Y. fiOft. Knijhts of Father Mittew (Sf) M m"' >PP-,«»; Sullivan v. ^i aTp-S.;: r^ r^ «i^'^S.5U?V.^V.nho„. aSOD <18W) 57 III. App. lift' ^' ^ °"* '^^^ Supreme v. Rauj^' "wJ[.'»«Ja;iJ"~?*? ^^8»0>' " Oat. Pr 104 <18M) W oa. 288 ^^^^^' ^« ^^ '• ^' 267; National r. Anirn.N - SSl"„ :• ?:S« «g*>. 2 H * M. 884. ?- » .. V. W;i2i««iei-,s>.^r^^^^^^ i«l ni 132 THE LAW OF INTERPLEADER. Soetrine of naioiiaUe foondstion. — It is now well «ettled, that an applicant for relief by interpleader from hostile claimants must show affirmatively, that the claims asserted or interposed have some reasonable foundation or plausibility, so that the court may see that there is a ques- tion to be tried.*^ As has already been stated, the mere fact that claims have been made is not sufficient, it is neces- ■sary to show in addition, some circumstances which will satisfy the court that the claims have some facts to support them, or such foundation in law as will create a reasonable doubt, whether the holder of the fund will be safe in pa}-- ing it over to the persor from whom he received it." Bvle in Sootland. — In Scotland, where the remedy, known as multiplepoinding, can be raised, either by tlie «takeholder or by one of the claimants, it has been held, that it is not enough to say ' I have a claim.' Some intel- ligible ground for the claim must be stated, not that the holder of the fund may form an opinion or judgment on the merits of the claim, but that he may see that a real 'question between hostile parties is raised. The holder of the fund is not bound to know or set forth the speciiic grounds of the several claims. He must make a relevant statement, that separate and hostile claims have been made to him.** The claims must be more than mere random claims, they must be real and intelligible, set forth upon grounds which may or may not be well founded in law, but which are at least stated with sufficient precision, to show that there is a double claiqi upon one fund, maintained by persons having hostile interests.** ** Nanau v. Yandea (1887) 44 Han. N. Y. S6: Feldman t. Ornnd I.odge (1802), 19 N. Y. S. 73; SteveDBon v. New York Ufe (1800), 10 App. DlT. N. Y. 233; Lennon v. Metropolitan Life (1887). 45 N. Y. 8. 1088; GoagriS v. Hndson (1888), S2 N. Y. S. 188; South wark r, ChHda (1888), 88 App. Wt. N. Y. 880; Kretaer t. City of New York (1808), 61 N. Y. 8. 829. • Poet T. Bmmett (1888), 40 App. DIv. N. Y. 477. I ^raaer v. Wallace (1883), Ct. of Beaiiioii. 20 R. 874. ** Cotnniercial Bank of Scotland ▼. Mnlr (1887), Ot. of Besaiun. 25 R. 219. THE CLAIMS. 18& There mvit be doubt and h«»rd.— It must also appear, that there ia some reasonable doubt or uncertainty, as to whether the stakeholder will be reasonably safe in paying or delivering the subject-matter to one of the chiimants,! without rendering himself liable for the same debt or duty to the other; that is, that there is some real doubt in his mind, to which of the rival claimants the admitted debt belongs. It follows therefore, that interpleader will only lie,, when the applicant cannot pay to one claimant without some substantial risk of being proceeded against by the other, or that he cannot without hazard determine to which of the claimants he should pay.»» In an action by a mortgagee of premises, which had been covered by a poUcy of fire insurance, payable to the owner or to the mortgagee, as their interests might appear, to recover the insurance moneys, the insurance company was allowed to interplead the owner and the mortgagee, as it appeared that the owner claimed an interest in the fund, having in the mortgagee's foreclosure action raised the de- fence of usury, and having in good faith taken an appeal from the judgment for foreclosure.** BeMon for the rule.— It would seem that this rule ap- plies more firmly, when the stakeholder has been sued by one of the claimants, than it does when h. institutes an action of interpleader, or files a bill, befoi suit. It has accordingly been stated, that the reason upon which the rule rests, is, that a plaintiff suing for money or property, should not be compelled without good cause to liti-ate his ns?"^*®^ v%"r'' ^?.^J™".^- ^- ^- 271: New York r. H.tv. Un.) 37; Baltimore v. Arthur (1882). 00 N. Y. 234: McCuMen t Metropomnn Life 2 Dl.t Rep P«. ^i; William.'T'^tn. Sin N Y «.«»"*•"• ^^'' .?■•"■" ^- Y"'«*«" <1««7). 44 Hun niv N 'y l^"T ""• New York Life (1806); 10 App NY H TAon^' ^"°'"' ""• Metropolitan Life (1897), « Mo Ann J^i S."'"''""J- KnlRhU Of Father Mathew (1807), 73 «V«,SA ^57 ?"y%^*^^*^ ^- \^- *^= SchwelKer r. -Sexton v. Home Fire Ina. Co. (1888), 85 App. Dir. N. Y. 17a. 134 THE LAW or INTEBPLEADER. m\ right or title with a third party, who may choose to lay claim to the same debt or property. It is thus, for the pur- pose of relieving the plaintiff from vexatious and ill-founded interference, with the proper enforcement by him of his rights against the defendant, that the defendant, seeking to interplead him with a third party, is required to state facts from which the court can determine whether the de- fendant is exposed to actual hazard of a double payment. In such a case the plea of inconvenience to the plaintiff must yield to the proper protection of the stakeholder. As the rule is for the plaintiff, it cannot be invoked by the claimant. It would be absurd to require the defendant to demonstrate to the claimant, that the cUim which the latter makes has some reasonable foundation. His right, at most, ia to insist, befoife he is brought into the action, that there' is some reasonable foundation for the plaintit's claim." Degree of donbt which most exirt.— It is not necessary for the appUcant to decide at his peril, either close ques- tions of fact, or nice questions of law, but it is sufficient, if there be a reasonable doubt as to which claimant is en- titled to payment. If the doubt rests upon a question of fact, that is at aU serious, it is obvious that the debtor can- not safely decide it for himself, because it might be decided the other way upon an actual trial; while, if it rests upon « question of law, so long as a principle is still under dis- cussion, it would seem fair, to hold, that there is sufficient doubt and hazard to justify the protection which is afforded by the beneficent action of interpleader.** Must be an aotiial second claim.— There must be an actual second claim; it is not sufficient to suggest that an- other person who has not sued is entitled, or that a ptrson not making any claim may do so in the future." One who makes no claim, and has no interest, is not a proper defendant ■ Bntler v. Atlantic Tni»t Co. (1899). 69 N. Y 8 814' Biirritt t Pre« Publtahtog Co. (1897). 19 A^pTlV. N Y. m Crane v. McDonald (IMO), 118 N. Y. 648. V V «. '' ^"*"" *""'* ^- Kleinwort (1897). 15 App. DIt. 478 N. Y.; Stewart v. Smith (1880)i 1 Phila. Pa. 48. THE CLAIMS. 135 to a complaint for interpleader.- An applicant's affidavit is not sufficient, when it fails to show that an alleged claim- ant, ever made any demand for the subject matter." It has therefore been held, that notice by the solicitor for the petitiomng creditor, that a fiat in bankruptcy has issued agamst the debtor whose goods have been seized and sold by the sheriff, is not a sufficient claim to warrant the sheriff interpleading, as it is not equivalent to a claim by the trustee." An allegation that the plaintiff is informed of a certam claim by one of the defendants, but is uncertain as to the fact, is fatally defective.- A sheriff upon being alarmed, cannot call upon a stranger to the execution to come before the court and make a claim, when no claim has really been made.* It has been decided in Alabama, that in an ordinarj- suit, a plea which in substance merely suggests another claimant for the property sought to be recovered, without a request for an interpleader, is subject to demurrer.* One claim mnrt be wocenfuL-It must appear that one of the demands, made on the fund, will probably be success- ful. The claims must negative each other, because if one of them can be legally enforced, without implying the in- validity of the other, there is nothing to be settled by inter- pleader;* and, if on the plaintiff's own showing, it appears that neither of the defendants is entitled to the money, the remedy will not lie.' In some cases where interpleader is propCT, and may be allowed, it may possibly appear on the tnal between the claimants that neither of them is entitled.' "^!!f*!,"M ^- fl?"" 0®^- 88 Indiana 515. "State Inaurance Co. t. Oennert (1873), 2 Tenn Chv 82 i"" ^- 8P«tabury (1888), 2 Dowl. 211 ^^ ^• ;AtklM V. Knight (1871), 46 Ala. B39. 805: ^''eTn. N T'oS"" ''■ ''*'' ^•'"' <'^>' * N- Y- s»- ""P- ; Moore t. BarnhclM"(1881). 45 Michigan 800. Keener v. Grand Lodge A. O. U. W. (1889), 88 M^App. 543 186 THE LAW OF INTIBPLEADnL U- 8* mm I ja .;; A mortgagor wag refused relief, where he alleged that an attorney of the mortgagee had demanded the mortgage money, that the mortgagee waa insane when the power of attorney was executed, and that the mortgagee's dau^ter forhade him pajring over to the attorney, the mortgagee himself not having been made a party.* If one elaia it ralid.— Interpleader will not lie, when it appears from the applicant's own showing, that the claim of one of the claimants is legal and valid, and that he is therefore clearly entitled to the debt or duty claimed, to the exclosion of the other claimant.' Nor will an inter- pleader be granted, when the stakeholder has a perfect de> fence at law, as to one of the claimants.* In such cases^ both claimants may object to the application, the one be- cause he puts forward no valid claim, and the other because no claim of right appears in the co-claimant.^* If one ohdnumt ean give diaoharKe.— A stakeholder can- not have an interpleader, when it appears that a payment or delivery to one of the claimants would have discharged him from all liability." Thus, a party was refused relief, when it appeared that he could have safely paid the money to the attorneys of the claimant where the latter had 9ued him;** and also where one claimant was an attaching credi- tor, whose order had been made absolute, because such claim was obviously good.** So, where a legacy in an executor's * Blake t. Garwood (1886), 42 N. J. Eq. 276. •MoLawk T. Clate (1834), 4 Paige N. Y. 384; School Diatrict v. Weston (1875), 31 Michlxan 86; Dry Dock t. Carr (1847), 2 Barb> N. Y. 60: Baaeett y. LeaUe (1880), 123 N. Y. 396; see alao Gantz. T. McCracken. 4 Yoi^ Pa. 184. * Conner t. Webber (1878), 12 Hnn. N. Y. S80. Bat see ante page 12. " Shaw v. Coster (1840), 8 Paige N. Y. 339; Briant v. Ree.l (1862), 14 N. J. Eq. 271; Starling v. Brown (187D), 7 Bush Ky. 164; Oraae ▼. Memphis (1892). 11 So. Bep. (Ala.) 480. "French v. Howard (1814). 3 Bibb. Ky. 301; Schnyler v. Pellwier (18:«j», 3 Edw. N. Y. 191; Delancy y. Mnrphy (1881), 24 Hnn. N. Y. 808; Savings Pnnd y. Clark (1881), 11 W. N. C. Pa. 118; McCulleu y. Metropolitan Life Ins. Co. (1886), 2 Dist. Kep. Pa. 861. " Myers y. The United Guarantee, etc., Co. (1866), 7 De G. M. & >* Randall y. Lithgow (1884), 12 Q. B. D. 525. THE CLAIMS. ivr hands was attached by one creditor of the legatee, and sub- sequently another creditor of the same legatee had a receiver appointed to receive it, interpleader was refused, because payment to the attaching creditor would have discharged the executor." Hut be more than an idle threat — A proper claim should be more than a mere idle threat." Under the first Interpleader Act, it was necessary that a stakeholder should show more in his affidavit, than the mere words of the Act, that some third person is expected to sue.'»« He cannot have relief, when he has no just expectation that he will be sued by the second claimant; and it is not enough for him to^ say that he anticipates a third party will sue him, if he pays the money to a present plaintiff." In Scots law, if a person thinks himself entitled to pro- perty in the possession of another, his course is to raise a direct action. He is not entitled to raise a multiplepoinding on the mere report that some one else is claiming the fund." This process, however, is not an unusual method, of raising the question, whether a person who would un- doubtedly have right, if alive, is really desd or not." Claim must be mature.— The claimant's title must be matured, fixed, and determined, or at least so far settled,, as not to depend upon the happening, of a future event, and 80 interpleader will not 1"^, when one claimant asks that matters remain in statu quo until his claim may mature ;*• nor when it appears on the face of the proceedings, that one can claim present payment, and the other only at a future date.*^ A tenant was accordingly refused a bill of interpleader,, because it appeared that no legal steps by distress or other- "Stewart t. Grough (1887), 7 Canada U T. 429. « £?"'' ^- ®'""' •" Boaalyn (1861), 3 Giff. 175. •• Sharpe v. Bedman 0837). 1 Will. W. & D. 375. n,u ^"^ ;;• P*/"'* <^^^>' 2 Hodges 107; Bevan v. Th^ Britannia Ina. C!o. (1869), 9 Ir. CJom. L. R. Ap. xxvl. «S^*.°f''t5**' ^- ^'*''*y <1890). Ct. of SeBRion, 17 R. 104«. "Taifa Factor v. Meikle (1890). Ct. of Seswion, 17 R. nS2 Trareller'a Inanrance Co. v. Healey (1886), 86 Hnn. N. Y. 624 " Hewitt T. Heiae (1896). 11 Ont. IV. 47. 138 THE LAW OF INTKBPLEADBB. m km ll-itiJi... wise had been taken;** and where goods are claimed to be the property of a decedent, an interpleader will not be granted until an administrator is appointed,** or the will is proved.** Before a creditor can be a claimant, hfr most have taken proper proceedings to establish the legal exist- ence and amount of the debt owing to him.** In Scotland, if a claimant have no present title on which he can sue, or in any way distress the holder of the fund, and it can be shewn at the outset that he has no title to pursue his claim, such want of title constitutes a good ob- jection to an action of multiplepoinding. An interest in such a process, is something more than a mere claim, it must have for its foundation a bond or bill.** If one elaim obriously bad.— When it clearly appears on the face of the proceedings, that the claim of one party is frivolous and without vahdity,*^ or that one party has ob- viously no title, or a subordinate one, or that either claim is not well founded in law,** interpleader will not be granted. And when the proceedings show, that one party has no claim, either legal or equitable,** or furnish no ground for belief that one claimant has a claim,** either claimant may object to the applicant's right to relief. CaMi in whieh relief refuted.— The following are cases in which interpleader has been refused, owing to one claim being either too weak or too strong. " Rowland v. Powell (1744). 1 Ridgew 260. » Paihley v. White (1881), 38 L, I. Pa. 52. "Bnrite v. RaUedge (1861), 3 Ir. Jur. O. S. 148. -Hines T. Spraill (1888), 2 Dev. & B. N. Carolina 98; Venable J^^ /J^ w "J Bo^e«7 Life Insurance Co. (1882), 40 N. Y. Snpr. Sr*- ^K^J^J-^^ <1«81), 1 Bob. C. C. N. Y. 385; Mahon v Moyna (1{>46), Bl. D. & O. 88. ««"«« v. - Wemyw r. CampbeU (1864), Ct. of SesRlona. 2 M. 461; Royal Bank T. Stevenson (1848), Ct. of Session, 12 D. 2.W: nee also White w.w'^MiT"^** ^l^^' P^- ^' ^''''"'' 8 ^- 952: Pollard y. Gallo- way (1881), Ct. of Session, 8 B. 21. "Pustet V. Flannelly (1880), QO How. N. Y. 07 rr ^^M-t" ^- ^'°**'' ^1®^>- 2 Sim. & Stu. 536: Desboronuh t. €o'"?.'fifJJ8S))^^7Shi?N*gir= ^'"'^"'"* ^"*''" ^"•' ^•"- " Puscy r. Miller (1894). 61 Fed. Rep. Del. 401. *• Wilson V. DoBcan (1860), 11 Abb. Pr. N. Y. 3. TBE CLAIMS. 139 A bank had a large sum at the credit of a customer, when a commMsion in bankruptcy issued against the latter, but was not proceeded with, owing to an arrangement with the creditors. The bank fearing difficulty, applied for relief by interpleader, but was refused.** An action having been brought to recover moneys on deposit in a bank, by the customer's assignee for creditors, and the same having also been claimed by other parties' who alleged that the money in the bank was the proceeds of their property, relief was refused, as it was said that more must be shown than a mere demand, or notice of claim." A bank alleging that a deposit was claimed by the de- positor, by the depositor's assignee, and bv another person, who claimed that the money had been stolen from him, was refused interpleader; because it appeared, that the deposi- tor admitted the assignment, and that the charge of steal- ing had been dismissed, therefore it was said, the claims were too shadowy and unsubstantial to be given serious consideration." Where the right of action of a depositor against a sav- ings barik was not negotiable at law, it was held that the bank could not have relief by interpleader, upon calling in a third party who could have no claim." On the ground, that an attaching creditor is not in a position to assail the title of an assiguee of his debtor, to choses in action, it has been hdd, that the debtor cannot cS» ^^^"^ ^^^ '^'^^^ *"^ *"" attaching creditor Where the constitution of a fraternal order provided, that the insurance moneys should be payable to the widow and children, and in addition to the widow a sister set up "^"« ^' Gibson (1788), 2 Cox 24. Wells V. National (1889), 40 App. Dlv. N. Y. 408 -G^nnan v. Friend (1882), 48 NY. St. Rep. 40O -v*"^/- ^**'° <1^>' 128 Mass. 593. N. Y. Snpr ct«r ^°"' ^''''^ ^'~ ^"•"""^ ^- »882), 49 140 TBK LAW OF INTBBPLKAOES. ' h |i ' Eaj,.i^: title under her brother's will, interpleader was refued, be- cause the sister's claim was without any foundation.** An insurance company was not allowed to interplead, where the insurance moneys were settled by a trust deed, claims being made by the trustees and by the ee$iui qu$ trust, for the reason, that under the deed the company was not bound to see to the application of the money, and could have safely paid to the trustees. It was said, that if inter- pleader were allowed under such circumstances, it would amount to a decision, that a party paying money to a trus- tee would be bound to see to its application, and conse- quently to the execution of the trust however complicated.*' A person desiring to have her life insurance moneys applied to the payment of her funeral expenses, named a woman friend as thei person to receive them; subsequently she married, and upon her death her husband, who was also her executor, surrendered the policy and claimed the moneys. The woman friend having also claimed and sued the company, the latter sought an interpleader order, which was denied on the ground that the second claim by the hus- band was not a conflicting one.** An insurance company was refused relief, where, on the death of an insured person the moneys were claimed by an assignee under a proper assignment executed by the insured in his life time, and also by the executor whose claim was f oimded on a letter written by the insured to the company, repudiating the assignment which he had made;** also, in another case, where in addition to the named beneficiary the policy moneys were claimed by another person who had possession of the policy and had paid the premiums.** A life policy was made payable to a creditor to the ex- tent of his claim, and the balance to the widow. The credi- tor having sued the insurance company, the latter inter- " Wertheimer v. Independent Order Free 8ona ot Jndah (1808), 28 App. Div. 64 N. Y. " Glynn v. Ixjcke (1842), 3 Dr. & War. 11. ?• Golden >, Metropolitan Life (1888), 35 App. Div. N. Y. 1569. " Stprenson t. New York Life (1898). 10 App. DIt. N. Y. 233. • Lennoa r. MetropoUtan Life (1897), 45 N. Y. 8, 1033. TBI CLAIXS. 141 pleaded, asserting that the widow claimed the whole^ but relief was refused as it appeared that the widow did not resist the creditor's right to be paid.** Where the applicant was a broker, with whom the first claimant had deposited securities for the due payment of a note iiiiiorriei^ by a third party, and the third party having dieman t. Monntcaiihel (1849). 12 Ir. L. R. RB3. li^"* ^/^Eoof °IPH°'^'^^'^ <1^^' Do*'- 186; bat sm Allen V. EvniiB (1838), 3 L. J. Ex. B3. "Hodntrs V. DouglaM (1879), 9 W. N. 0. Pa. 191. •M ^ S51S"**'" ^■"'^ °' Commerce t. Bruce (1882), 2 Canada L. T. THE CLAIMa 143 Where mortgagees of land were in possesgion, at the time the sheriff seized the growing crops, it was held that the sheriff could not interplead, as the mortgagees having taken the land had prima facie possession of the crops." Goods in the possession of an assignee under a bankrupt or an insolvent act, cannot be taken in execution, and if the sheriff do seize he cannot interplead, for the court can- not bar the assignee's claim because he is in possession by operation of law." Speoul role in Eiigtaiid.-When a debtor or trustee seeks to mterplead, under the section of the English Act, which allows relief when such person has had notice of an assign- ment of the debt or chose in action, and there are conflict- ing clamis, it is necessary for the applicant to show notice of an absolute written assignment before interpleader will lie." When oUimt aoooidinff to prioritie«.-If the claimants claim only according to their priorities, and the rights are distmctly set forth, it would seem that the applicant is in no difficulty requiring interpleader." A tenant's bill was ac- cordingly dismissed, when the defendante answered that they claimed only according to their priorities." But if two of the claimants have taken legal proceedings, inter- pleader wll lie, althouch it may appear that the applicant would be safe in paying the fund in succession until ex- hausted, because he should not be doubly vexed, by having wo legal processes for one debt, going on against him in tne name of different persons at the same tune." V. ^itVb°0 pL'm' ^^' ^ ^"- ^^= "«» •« ••«> M.nnln. cb.p'te'J'xr" "• """" <"">• ^ Ont. Pr. 211; .ee .!« etc'S. alre)^'^ 'n''!^.*^J'' ^' ••^.«.' '» »* New Hamhunt. Cnlvert (1?T»!!17 W Rl5l ^^®™^* ^^ ^^^- ^' «"' *'«•»>" ^• rritc?.rt aSSTii p'riJ^JSi"" ^'^^' * ^""- ««»= B-oy^ V. -School DLtrict T. We.tok (18TB). 31 Michi,.n 80. 144 THE LAW OF INTERPLEADEB. ■1^ Where several persons asserted claims to a life insur- ance policy, which was by its terms for the benefit of one of several parties named, according to surrivorship, the in- surance company was refused relief in an action oMnter- pleader.*^ In England, in some early cases, the sheriff was refused relief under the Interpleader Act, when the proceeds of his levy were claimed by two creditors, each claiming priority. It was said that he would be justified in paying the first creditor, and so the statute did not apply.'* This rule was at first followed in Canada,'* The later cases in Ontario piovide, that relief will ]je granted to the sheriff, and an interpleader order has been made where two execution creditors claimed,*" as well as where the contest was be- tween an execution, creditor and an attaching creditor under the Absconding Debtors' Act.** It was said, that the law hy its enactments had placed the sheriff in an embarrassing position, and the court should exert itself to extricate him iif possible from the confusion arising out of the conflicting oclaims of those who seek his services.** Wh«tt elaim a lisn.— It is not requisite that the right 'Claimed by the third party should be an absolute right of property. It is enough, that the stakeholder has received notice not to deliver the goods over until a demand made by a claimant in respect of a lien on such goods, has been .satisfied.** Where executors held a mortgage by which a trust had been created in favour of the plaintiff, and a claim was also made by attorneys for a lien thereon, an order for interpleader was granted.** "Travellers v. Healey (188B), 86 Hnn. N. Y. D24. ■* Salmon t. Jamea (1832), 1 Dowl. 868; Day t. Waldock (1833), 1 Dowl. 523. " Wilaon V. Wilaon (1869), 2 Out. Pr. p. 376. "Kerr t. Klnsey (186B), 16 Upper Canada C. P. 881; Davlea t. Smith (1888), 10 Ont. Pr. 027. "Leroh T. Williamson (1884), 10 Ont. Pr. 226; Standard r. Hughes (1888). 11 Ont. Pr. 220. • Standard v. Haffbos (1888), 11 Ont. Pr. 220. " Harwood v. Betham (1832), 1 L. J. Bx. N. 8. 180. " Price T. Holman (1886), 22 Weekly Digest N. Y. 478; 101 N. "V. 688. THE CLAIMS. 145 lien in iheriri c»»et.-In England, it has been held, that the Interpleader Act comprehends cases of claims of lien, as well as of absolute property. It is to be observed, that in the commercial world, a lien may be equal to the entire value of the goods. A sheriff was accordingly al- lowed an interpleadtr order, where a lien was claimed on horses seized 'or their keep." In the United States it has been said, that in sheriff's interpleader an order will not be made, when the claimant merely avers a lien, because the sheriff can sell subject to the lien.«« Claim witlidrawn and another made.— When a first claim has been withdrawn, and a second claim promptly made an mterpleader will be allowed." Where a sheriff applied'for an mterpleader order, but his appUcation was discharged with protection, as the claimant, a partner, did not main- tarn his claim, and afterwards the same claimant set up a different title, claiming as sole owner, the sheriff was awarded the interpleader order." If a claimant abandon, after an issue has been directed, he cannot claim again.«» In a Scotch action of multiplepoinding, where it was held that one claimant was not entitled to participate, an- other claimant, who had claimed upon the footing that the unsuccessful competitor was entitled to a share, was re- fused permission to have the record opened, so as to enable him to extend his own claim." In a later case, however, ▼here the fund was still in manilnu curiae, an unsuccessful claimant tendering another claim upon a new ground, was allowed to do so upon payment of expenses." When elaim diiappeari.— When, before final decree, the cause of apprehension is removed, the bill of interpleader Pa."lS?" ^* ^*'* ^""^ Passenger Railway Co. (1876). 4 W. N. C. "Laflin T. Snplee 0884). 17 W. N. C. Pa. 187 •Oaynor v. gait (18«4>. 24 U. C. Q. B. 180 •Men«e v. Wiley (1882). 100 Penn. St. 617. nn!!;?'"i ^- 2"'"'" <*868). Ct. of Seaalon. 6 M. 820. " Dymond v. Scott (1877), Ct. of Sesalon. 5 ». 106. ,0 146 THE LAW (W INTERFCXADEB. muHt be dismisBed, even though at the time the bUl was filed there wad some plausible apprriiension that tiie plaintiff would be involved in a two-fold responsibility." And where the foundation of a claaumt's claim disappears, after he has been served, and before the ictam of te appliaation, he need not and ^ould not appesr, as in the case of an assignee of a debtor when tiie bankmpicy has been put an end to." If one claim disappeir before an applicatim is made, interpleader will not lie. To enable a sheri^ for instance, to get an order protecting him, he most show that two claims exist, so that an issue may be dixeeted to try the title to the goods; if one claim has dkappeared there is no longer any fovndation for the remedy.^* Nor will interpleader lie, whea one claimant has waived all his right to the sub- ject matter, and subsequently makes claim again. ^^ It must always be plainly evident that there is a question to be tried." Whan fut that olum made diipnted.— When the asser- tion, that a claim has been made, is disputed, unless the party seeking protection can prove it, no case for inter- pleader is made out." " Kerr y. Union Bairic (1882), 18 Md. 398. ^ Clarke v. Lord (1888), 2 Dowl. 65. " Sodean v. Shorey (1896), 12 T. L. R. 277; 74 L. T. 240. «?*)*^™*"^* ^- P«»«»rHwive Printing Co., 2 Diat. Bep. Pa. 264. '•Quiuton v. Butt (1880). 8 Ir. Jur. N. 8. 180. "Cook V, Earl of BoMljrn (1861), 8 Oiff. 175. CHAPTER VI. DOCTBINE OF INDEPENDENT LIABILITY. Independent li.bility.-The undisputed liabUity, of the pe«on Beek.ng relief by interpleader/ to pay or deiver to whichever claimant the court may find entitled, is the sL e b88« of the applicant's right to the remedy. If, howTver mdependently of the title to the subject matte Z7e^ a further hability which he does not admit, then he Uul tion becomes more complicated, and the right to elief ti clear This consideration of triple liability raises the pro position-Is it better that interpleader should fe, and one clamiant be obliged to maintain two actions for selat. IT'fZ "^l*'^ °*'" ^^''^'"-^ *o determ n tL ow?e ^I^J r""'"'' '° '^'^P"*^' ^^'^ *he second with the ^lih^V^u^ '""""^y ^ ''^""'^ ""-l the stakeholder oT^r tr^. ^'°? '^'^P*"^^ *° P'^y '^^ «-»« debt twice over, with the vexation of fighting two actions for the Zml Tn^r rT' '''' '' *'^ «"'* «''««h claimant? Th e'riy rrLeVund'^t'^ "^ ' '^^*'°«* °«^«-' -'"e tt thSmportaU';^^; ""^^^ ^'^^ ^^^--« ^--^ "Po- inteKV'^irnlf V"''-; "^'^ i" **^"'*^ -« ^^-' that theXS r ' ''"^ defendant claimed from 'S«^ N.tlon.l T. Platte (18W). 64 III. App. 488. • 148 THE LAW OF INTERPLEADER. This rule has sometimes been put in another form, when it is said, that interpleader will be refused when all the lights claimed by the defendants in a bill of interpleader cannot be determined in the litigation between them. In an issue between the adverse claimants, to settle the title to the property in dispute, the personal claim of one de- fendant against the plaintiff cannot possibly be determined.' This doctrine has also been described in still another way, when it is said that, interpleader will not be awarded if the claimants' claims are not co-extensive, because when one of the defendants claims the property and damages in addition, and the other the property only, or where one claims two fund* and the other but one, the claims cannot be said to be co-eijtensive, one is more extensive than the other.* A leading ease in Englaad.— The doctrine was clearly enunciated in England in 1837 by the Court of Chancery of that day, as follows: The case tendered by every bUl of interpleader ought to be, that the whole of the rights claimed by the defendants may be properly determined by litigation between them, and that the plaintiff is not under any liabUity to either defendant, beyond that which arises irom the title to the property in contest; because, if the plaintiff has come under any personal obligation, indepen- dently of the question of property, so that either of the defendants may recover against him at law, without estab- lishing a right to the property, it is obvious that no litiga- tion between the defendants can ascertain their respective Tights as against the plaintiff, and the injunction would de- prive a defendant having such a case beyond the question of property, of part of his legal remedy, with the possibiUty, at least, of failing in the contest with his co-defendant, In which event the injunction would deprive him of a legal right without affording him any equivalent or compensa- tion. A party may be induced by the misrepresentation of the •Hoggart T. Ontt. (1841). 1 Or. & Phil. 191; Browning v. Walking (1848). 10 8. St M. (Miss.) 482. „ ^ ._. _ .. ^ • Attenborongh v. I^ndon (1878). 3 C. P. D. 4B0; Carroll v. Demareat (1880). 88 N. T. 8 1028. DOCTRINE OF INDEPENDENT UABILITY. 14» apparent owner of property, to enter into personal obliga> tions with respect to it, from which he may be entitled to be relieved by a court of equity, but such a case can not be a subject for interpleader between the real and pretended owners. The plaintiff would be asserting an equity for rehef from a personal contract against one of the defen- dants, with which the other would have nothing to do.* The courts do not encourage the insertion in inter- pleader bills of long narratives and correspondence, for the purpose of showing that there has been no contract with one of the parties.* Glainu beyond fond preMnred.— In some cases of inde- pendent liability, if the defendants do nut seek to have the bill dismissed, an interpleader decree will be made and the plaintiff be protected as to the money paid into court, but he will remain liable to all such proceedings as the defen- dants may think fit to institute against him, in respect of other matters, such as liability for a further sum over and above that paid into court.* Under Interpleader Aet.— Courts of law in England at first refused relief under the Interpleader Act of 1831, if the applicant had incurred a personal liability to either of the contending parties, independently of the question of property, following the rule in equity.* When relation eontraotnal.— The scope of the English Act was further confined, by a somewhat similar rule, that relief would not be granted when any contractual relation existed between the applicant and either of the adverse claimants. Because, when a contract existed, the applicant had given the claimant a personal right against him, and in *CraW8hay v. Thornton (1887), 2 Myl. ft C. 1. • Prudential Insurance Co. t. Thomas 0867), 3 Chy. App. p. 77. (1880), 7 Mackey D. C. 446. 'Lawrence v. Matthews (183«l». 5 Dowl. 14H; Patomi v. (3nrapbell (1843), 12 M. & W. 277; Baker r. Bank of Australasia a857). 1 C. B. N. 8. 515; Lucas v. The Loarion Dock Co. (1882), 4 B. & Ad. 878; see also Lasams t. Harris (1888), 9 N. 8. Wales L. R. 148; Darcy v. Fielder (1888), « N. 8. Wales W. N. 155, over- rulinK McGuiuess v. Bank of N. B. Wales (1880), 1 J!. S. Wales L. R. 07. \l 150 THE LAW OF INTfiRPLEADEB. the face of a contract, the court would not grant reUef, though neither claimant sought special damages but only the right to the subject matter in dispute. This rulevwas particularly hard on such classes of persons as, bankers, wharfingers, warehousemen, carriers and the like.* After 1800 in England. — After the English Act was amended in 1860 so as to permit interpleader where the titles of the claimants had not a common origin, but were adverse to and independent of one another,* and consider- ing that the Act of 1831** gave the courts power to make such rules and orders as to costs and all other matters as might be just and reasonable, the courts took a more liberal view of the remedy, and decided that for the future relief should be awi^ded although there might be a con- tractual relation between the applicant and one of the claimants, and this notwithstanding the fact that the appli- • 1 * 2 Will. IV., c. 68. a. 1. ••Meynell v. Anitell (1862), 32 L. J. Q. B. 14; Bent v. Hayes (1868), 1 H. & C. 718; Kvnns v. Wright (18«R). 13 W. B. 468; "Tanner v. European Bank (1866), L. B. 1 Ex. 261. " Attenborough v. London (1878), 3 C. P. D. 460. DOCTRINE OP INDEPENDENT UABIUTY. 151 subject matter. The fact, that a person in possession of goods has entered into a contract with one of the parties claiming them, does not debar him from obtaining an ex- ercise in his favour of the powers conferred by the inter- pleader acta. The rule in equity is somewhat narrow. If damages are claimed in addition to the subject matter, the Interpleader order must preserve all such claims as a claim- ant thinks he can enforce. It is true, that one claimant may be exposed to the inconvenience of contesting two suits, one against the other claimant with respect to the title of the property, and the second a|;ainst the person holding the property with respect to the claim for dam- ages; but it is a less inconvenience than that which the statutes were intended to remove, and the hardship upon the claimant, is not to be compared to that which would otherwise be a hardship upon the person seeking relief." Where, in pursuance of a written agreement, the two competitors in a trotting match deposited money with the proprietors of a sporting paper, and the latter, by a clause in the agreement, agreed with each of them, that in con- sideration of a commission of one per cent, on the total amount deposited, he would pay over to the winner a sum of money equal to the stakes deposited less his commission, it was held by the English Court of Appeal, that, under this clause, whether taken by itself or in conjunction with the other clauses of the agreement, no personal liability to pay was undertaken by the proprietor beyond the liability or- dinarily undertaken by a stakeholder, and that therefore an interpleader issue was rightly ordered.'* Sheriff's omw.— When a sheriff in levying an execution enters the premises of a person other than the execution debtor, and there seizes goods, believing erroneously that such goods belong to the debtor, the sheriff may in inter- pleader proceedings be protected against an action for tres- ..."^"w 5'"*.*''' ^- ^^'' > " Ont- Pf- 529. cited In argument; McKeniie v. ^tna (18TO). Rnssell's Eq. Dec. Nova » ^, »' S* Cnnadjan Pacific Ry. ft Camithers (1806). 17 Ont. ■ ,:!;• ^ Underfeerf Stoker Co. of America, etc. (1901), 1 Ont. 42. "Dowaon v. Macfarlane (1.S99), 81 L. T 87 162 THE LAW OF IMTEBPLEADER. Si I fli pass to the lands, as well as against an action for seizure of the goods, if no substantial grievance has been done to the person whose premises are wrongfully entered," The Interpleader Act gives the court power to adjust claims, as well as to protect sheriffs, and the court may settle a claim for damages for trespass; if it appears that the sheriff has exceeded his duty the court M'ill leave him liable, if he has acted bona fide it will protect him by prohibiting a claimant from bringing an action.** Estoppel in interpleader. — Interpleader will not be re- fused, when one of the claimants has been induced to alter his position through the representation of a defendant in possession of property in question. Although such a defen- dant may be technicaUy estopped from denying the plain- tiff's claim, yet, if a bona fide claim is made to the goods by a third person, the court will disregard the technical estoppel and direct an issue between the plaintiff and the claimant.** Interpleader will be granted to a defendant sued by one of the claimants, although in the action the defendant who seeks relief would be estopped from setting up the right of the third party, or a jus tertii as a defence;" nor does it matter, that the plaintiff could, in his action against the stakeholder, give evidence of personal transac- tions with a deceased person, which he would not be per- mitted to give as against the other claimant, the adminis- trator." In England an attempt was made in 1899 to abrogate the rule, with the result that the Court of Appeal followed and confirmed it. Wharfingers, with whom goods were stored, had written a letter to a bank, stating, that at the request of the owner they held the goods thereafter to the " Smith T. Critchfield (188B), 14 Q.B.D. 873. " Winter t. Bartholomew (18S6), 25 L. J. Ex. 62. Some earlier decisiona are to the contrary: Hollier v. Laurie (1846), 3 G. B. 334; Abbott V. Richards (1846), 16 M. & W. 194; see also De Ck>ppett V. Bamett (1901), 21 Times L. R. 273. " Attenborough t. London (1878), 3 C. P. D. 450. " Robinson v. Jenkins (1890), 24 Q. B. D. 275. <*Flanery v. Emigrant Savings Bank (1889), 23 Abb. N. G. N. T. 40; see also Meynell v. Angell 0862), 32 L. J. Q. B. 14. DOCTRINE OF INDEPENDENT UABIUTT. 16» bank's order, and on the faith of this statement the bank adTanced money on the goods. Subsequently, the first bank and another bank both claimed the goods adversely, and the wharfingers interpleaded. It was held, even assuming that the letter constituted an estoppel, that nevertheless an order should be made restraining the claimants from proceeding against the wharfingers in respect of their claims, excepting however any claim which the first bank might have upon the letter for damages, and an issue waa directed between the two banks to determine to which of them the goods belonged. It was pointed out, that the authorities, the history of the law on the subject of inter- pleader, and the modifications which have taken place, show». that eminent judges have been of opinion that the scheme of legislation has been to remove the restrictions, which existed before the common law Procedure Act of 1860, and to give a wider jurisdiction to the courts. The fact, that an applicant would be estopped from denying the title of one claimant, does not limit the jurisdiction of the court to award relief when a second claimant appears, and under such circumstances there is no reason why the existence of the estoppel should, in the matter of discretion, prevent the court from granting relief. As a further reason in sup- port of the order, it was pointed out, that if the claimant alleging the estoppel succeeded on the issue that would be an end of the matter; and if he failed, it would still be open to him to assert any claim which he might have against the applicant for the value of the goods, as in the old action of trover, or for any other damage arising from a conver- sion of the goods.*' In Kansas, it has been pointed out, that the code vests- in the court, to which application is made by a defendant for substitution of a thiid party in his place, a legal discre- tion to grant or refuse the application, and where the sub- stitution will prejudice the rights of the plaintiff, the dis- cretion in the court will not be abused, if the application ' Ex p. Mersey Docks and Harbour Board (1890), 1 Q. B. 546. ■■oumoN mr omit (A^BI o«d BO TEST CHAITT No. 2) 1.0 1.1 1.25 itt IM Hi LZ5 IM lU Itt IM L6 ^ ^IPPLEO M/GE I,* l«U Eat IMn »rMt l*ijy«ii, i4«o( USA (7li) 4«2-(M00-HWM (7U) 2M-StM.F«i 154 THE LAW OF INTERPLEADER. #|M|i| If ■: i P'-^ be denied, but if the rights of the plaintiff will not be in- jured by having to contend with the third party, the court, it has been held, should permit the substitution within the terms of the statute.** Rule in the United States.— In the United States, the rule laid down so clearly in England in 1837 was adopted, and is still followed, notwithstanding its subsequent broad- ening in the mother country. It is essential therefore, that the party seeking relief must have incurred no per- sonal or independent liability to either claimant, beyond that which arises to the title of the thing in contest; while it must also appear, that there is nothing else to be litigated, except the rights of the different claimants to the thing in question. If the whole of the rights claimed cannot be determined in a litigation between the claimants, inter- pleader will be refusfed.« The applicant must stand per- fectly indifferent between the claimants in the position of a mere stakeholder.*' The independent liability which will deprive a deposi- tary, of the right to require rival claimants to interplead, may arise, either by express acknowledgment of the title of one of the claimants, or out of such contractual rela- tions as will bind him, as upon an independent undertaking, without reference to his possible liability to the other claimant.** " Wafer v. Harvey County Bank (1887), 36 Kansas 292. /.oJo. "ot""*" ^- Cropper (1867), 3 Del. Ch. 165; Tyua v. Rust (It^), 37 Ga. 574; National v. Platte (1804), 54 111. App. 483; «ol?m'°«,.®wf*? C"- ^- ^*y <1886), 64 111. 323; Sprague v. Soule (1876), 85 Mich. 35; Cullen v. Dawson (1877), 24 Minn. 66; Brown- «f J" «'*^l?" ^***^>' ^^ 8- * M. (Miss.) 482; Whitney v. Cowan 0878), 56 Miss. 626; Ter Knile v .Ketldick (1888), 39 Atl. 1062 ?; ^'' ^.^l^^^^\ Kingsland (1880), 46 N. J. Eq. 113; Ludlow v. Strong (1^), 53 N. .1. Bq. 376; Opponheim v. Leo Wolf (1846), xr^^ ^Vr'l;,^- ^- ^'^^'' Sherman v. Partridge (1855), 11 How. ?. \ }^r^}^^^^ ^- '^^^ ^1^^>' ^* How. N. Y. 383; Holmes v. Clark (1873). 46 Vt. 22; Burhop v. Milwaukee (TS64), 18 Wis. 453; Nichols V. Bumham (1887), 21 W. N. C. Pa. 153. "Kyle V. Mary Lee Coal ft Ry. Co. (1896), 112 Ala. 606. M ^A«^"',7•J*'""^<^^^• ^ "'• App- ^^- Sherman v. Part- ridge (1855), 11 How. N. Y. 154; Lincoln v. Rutland (1852), 24 Vt. \NH7i DOCTRINE OF INDEPENDENT LIABILITY. 155 Where, therefore, there is an independent liability of the party seeking relief to one of the claimants, arising out of the special relation subsisting between them, creating for example the relation of bailor and bailee, landlord and tenant, principal and agent, or creditor and debtor, inter- pleader will not lie. AVhen the applicant has placed him- self in such a position that he is estopped from disputing the title which has been given to him, he must defend it in the ordinary way, even though a title paramount to that under which he received is asserted; he cannot cause his pnncipal and the holder of such a title to interplead. There can be no interpleader, unless it be made to appear that others have acquired a title or interest derived under the same authority.*' Where moneys for the erection of a building were claimed by the administrator of the contractor who had been killed, and by a firm which had supplied the contractor with material, it was said, that as between the two the owner of the building was not an indifferent person. He had entered into a contract and had bound himself to pay a cer- tain sum upon the performance of certain services." Interpleader has been refused in the United States, ap- plying this rule to many classes of persons liable on con- tract8,»» as a common carrier liable to one claimant on his bill of lading;" a purchaser liable to pay his purchase money under his contract with the vendor;" a warehouse- man on the receipt issued for goods," and a bank liable on a deposit certificate.*^ Such class of cases may also be defec- tive on the ground of want of priority between the claim- ants, but will be proper for interpleader if the adverse claim is under a derivative title." ;; Richardson v Belt (1808). 13 App. Cas. D. C. m. 111. AproaT """' """" "' ^""'•" ^- ^'^^n"*" (1804). 55 ;|McGaw r. Adams (18S7). 14 How. N. Y. 46. " -Trire V. Hit. (1864), 17 Abb. Pr. N. Y. 436. *Ty"f ▼■ Rust (1868), 37 Ga. 574. Wells V. Miner (1885), 25 Fed. Hep. Cal. 533. CrawBbajr v. Thornton (1837), 2 Myl. & C. 1. 166 THE LAW OF INTERPLEADER. if! ICsdan tcndeney to modify rnlo. — As a contractual re- lation is a necessary and ordinary incident, in the variety of conunercial and other transactions which are constantly taking place, the modem tendency of some of the American courts, seems to be to modify this narrow rule, adopted from the English system Of equity, as much as possible, when conflicting claims to property in the possession of a depositary are merely for the subject matter, and not for special damages in addition. Thus a bank has been allowed interpleader as against its depositor," and also against the holder of a special certificate of deposit.** The maker of a promissory note has been allowed to call upon the holder to interplead with a third party." A loan company has been allowed to interplead its borrower, the mortgagor, with a third party;" an^ a railway company the holder of the bill of lading, with the person in whose name it was made out." The fact that the applicant, upon money being left with him for one of the claimants, notifies such claimant of the fact, does not create an independent liability which takes away the right to interplead, when the same money Is claimed by another party.** Where a bank had recognized one of the claimants as the owner of certain stock in dis- pute, and had paid him dividends thereon, it was held, that this did not bind it to anything in the future, and did not come within the rule that an independent liability had been incurred to one party.** Code proTiiioiu. — Many of the American States have abrogated, by their Code provisions, the narrow rule of equity above referred to, which still governs in actions Bank of New York v. Skelton (1846), 2 Blatrhf. N *• City Y. 14. " Plwt National Bank y. Weat (1874), 48 Vt. esa "Howe V. Qifford (1878), «( Barb. N. Y. 697; Bechtel v. Shenfer (1888). 117 Pn. St. 555. " Franco v. Joy (1894), 56 Mo. App. 483. " Brock V. Sonthem Railway Co. (1806), 44 8. O. 444. "National v. Platte (1894), 64 111. App. 488. . " Cady V. Potter (1869), 55 Barb. N. Y. 463. DOCTRINE OF INDEPENDENT UABIUTY. 157 of interpltdder, by declaring that statutory interpleader ahaU Ue in favour of a defendant, although he is sued upon a contract. Thus, in Xew York, the code provides among other cases that, a defendant against whom an action to recover upon a contract is pending, may upon proof that a person not a party to the action makes a demand for the same debt, apply to the court, etc." In Alabama it has been held that, the statute does not abrogate or impair the rights of a bailor, nor the duties of the bailee, other than to give the bailee the right to require ihe claimants to interplead.** • 8ce San Francisco v. Long (1898). SS Par -'iPni » Tim "Powell y. Roblnwn (1884). 76 Ta. ^. ^ * ^^ n m CHAPTER VII. THE APPLICATION AND PBOCEDUBE. BiU of interpleader.— A person seeking relief by way of interpleads, in a suit or action, following the early equit- able practice, commences his proceedings by stating the necessary facts, and praying the usual relief, in a bill of complaint, commonly known as a bill of interpleader, to which is annexed tan atfidavit of no collusion. The bill when completed is filed and served on etch of the defendants A plaintiff's first object, after filing and serving his bill «s to obtain the usual injunction or stay of proceedings! In some cP-es without waiting for the appearance of the defendants, he may, upon supporting the allegations in his biU by an affidavit, obtain ex parte an injunction, upon pay- ing the fund into court. If any injustice is apparent, a de- fendant upon appearing may move to dissolve, but as a gen- eral rule the court will continue the injunction until the hearing. Or the plaintiff may move, upon notice, either before or after the defendants have appeared, and the in- junction will be granted almost as a matter of couree.* After the plaintiff has obtained hie injunction, the gen- eral practice is, at an early stage and in a summary way, to dispose of the propriety of filing the bill. The defen- dants therefore come in on motion, and state their respec- tive claims with or without affidavits according to the cir- cumstances. If the defendants do not deny the statements, in the bill, an interpleader decree will at once be made, that the defendants proceed to litigate their rights, the plaintiff withdrawing from the suit and provision being ' Bee Chaster VIII. THE APPUCATION AND PROCEDURE. 169 made for hi« coste Most interpleader bills are disposed of in this way, and few are brought to a hearing. A defen- dant will not generally be ordered to interplead, until he has put m his answer, or the bill has been taken pro A^ i ' f ' '"'* '''" **»"° ^^' *« go on to a hearing.' A defendant may demur to the bill, and possibly estob- hsh that the plaintiff has not shown a case entitling him to relief; or the defendants may deliver answers, setting out heir claims, and if that be done, no other evidence of the facts need be produced to entitle the plaintiff to a decree.* A defendant however, is not obliged to challenge the in- ufficiency of a bill by demurrer, but may answer it and rely upon the want of evidence.' By going to a hearing obj^tions which might have been taken upon demurrer.' .hpthV ^T^; *^' ''^^" P'"*^"^^ ^«' *« determine first vrhether mterpleader will lie, because if it does not, it will then be unnecessary to go further, for the defendants Jr ZL71"''''"?- "' ^'*"^'° '''''^'''''' "P«" tl^^ r«c-d.^ ihe plaintiff continues to be a substantial and necessarv party until he has fully rendered the debt, duty, or thirrZ quired of him, and the court will not require the defendants .0 interplead until the money is either in court or subject to donel^'4 \t} " '''" '' " '"""^^ " "•^'^^ *^« P^«-«ff has Broadbent (18^)73 vSrian L^' iq?"^.'*^' Au.tr.Uan v. (1891), 43 Mo. Add 214 irtL ^\ ^^.' G'""*' ▼• Wel.berg :Toulmln r. Rl^'aiS^rS^T'^m "' ^'""- " ^- '^'^ •P-rt?«i ''• ^■''""? 0844). 1 Sandf. Ch. W Y) 380 J^?,'^ ^' ^Jf* 0881). 130 Ma«^ 231. " ^^" Co.'v°"^/aSS'Sj'£7'^ «"«• <^-> ^•' Home Life la.. VerL'sS."" '• ''"•"''* <^«*>' i >««>"• 134: Anon (leSB). 1 160 THE LAW OF INTERPLEADEB. ill! Tke decree. — The only decree which the plaintiff is in- terested in obtaining, is, that his bill is properly filed, giving him leave to bring the property into court, allowing him his costs out of the fund, restraining all pending or threat- •ened actions, and directing the defendants to interplead, and 60 to settle the conflicting claims among themselves.'" When the defendants assent to a decree of interpleader, and that decree has put the first stage of the case at rest, and whether it may be said to be technically a proper case for interpleader or not, the court will treat it as proper." The failure of a defendant to answer a bill, until after an interlocutory decree has passed declaring that he has no interest because he does not appear, does not preclude him from asserting his claim at any time before a final ■decree is made." The plaintiff may read the answer of one defendant against the other defendant, in order to show that adverse •claims have been brought forward, sufficient to entitle him to maintain his bill, and the court will not then put him to other proof of his allegations.^* A defendant may show at the hearing, that the cause is not a proper one for interpleader, and it is not too late that the objection was not taken by demurrer, or upon the motion to pay in,** and one defendant may read the answer of the other.*' If at the hearing, the questions between the defendants are also ripe for decision, the court will determine the whole matter and pronounce a final decree, disposing at once of mi »• Pairbrother t. Nerot aSlS), 1 Dan. 68; Gatberall t. Davies '(18B9). 1 Oiff. 326; Hoggart v. Gutla (1841), 1 Gr. Jk Phil. p. 206; Atkinson ▼. Manica (1823), 1 Cow. N. Y. 691; Owing* v. Rhodes (1886). 65 Md. 408; Williaon v. Salmon (1888), 45 N. J. Eq. 257; Walieman t. Kingsland (1889), 46 N. J. Eq. 113. "McFadden v. Swinerton (1900), 59 Pac. 816 (Or.). "Heald v. Bhind (1897), 86 Md. 820. "Maaterman ▼. Price (1847), 1 Gooper 383; Balchen t. Graw- ford (1844), 1 Sandf. ch. 380 N. T.; Morrill v. Manhattan (1898), 82 111. App. 410. xToulmin v. Beid (1861), 14 Beav. " San Francisco Savings Union v. 700 Cai. 490. Long (18D6), S5 Pac. Bep. THE APPLICATIOS AND PROCEDURE. 161 the whole case and the rights of all parties. But, if they are not ripe the court directs an issue or a new action or that one claimant defend an action already commenced with or without a juiy, or a reference is sent to a mrter as may be best suited to the nature of the case pre"" n ' the suit for further consideration" It i« noi LT therefore, for the defendants to enter ItTeZlTls against each other in the interpleading suit." A ter "„ a" rrtiii;::r\f ^^n*^« ^'^--*« ^t^ndMLTthe ItZ 1 " ' ^"''"•'° ■'^ "gJ^t Pe»din? between tne other They occupy as between themselves the uosi tion of plaintiff and defendant, and a sworn denia byTe of them of the allegations of a cross bill filed by the other has the same effect, in evidence, as though contained Tn an answer to an original bill." "lamea m an Modwn action of interpleaaer.-The steps in a modern achon of interpleader are analogous to those in an ^ter- pl^iding suit in chanceiy. In New York State, however the plaintiff in such an action cannot move for an iXne tion, until the defendants have put in their deInce«'The' Son Z:\*'" ''-'^ ^^ « --* Califo^^^a dl"! Zi'mir^ T""- J^'^' ""^ "^"""y^ ^« « *«'-f«ld con- test, (1) As to the right of the plaintiff to bring the suit and to force the defendants to interplead, and (2 if Teh nght IS maintained, the litigation alng'tre dt^Ldant dale (1848). 7 Hare 57' ^ ^^. o^*f^ ^■""* ^'^^ ^o- ^- Little- (1896). 42 Pac! r7p log Or ^P« t, ^'"^'^^ • ^'""^'- Co. v. Lan« Condict V. Kn^aSM) 1%' v "t " ^ ^"''P^ ^^^W), 40 Ga. 22.5- (1886). 65 Md Wr fL NaL.^- „«1- 3^5; Owing, r. Rhodt, River Hy. Co. (llw) « Vt S?i. ?"'"'/' Battleboro v. West Hep"LTcS."*""' ''"* '•"'• C°- -• Union Trn,f Co. (1897). 83 Fed -Wartlngton v. Lawrence (1865). 28 How. Pr. 433 N. Y. U ■ t t i-S 1 162 THE LAW OF INTERPLfADER -S . .4 - There may be two sets of pleadings, (1) those having refer- ence only to the right of the plaintiff to maintain his ac tion and (2) the several complaints of the defendants, in which their respective rights to the subject in controversy are set up. These may be, and usually are, included in the answer to the plaintiff's complaint. Such answer is then in the nature of a cross-complaint, and should be serve-! npon each defendant, who may answer the same. Whether the plaintiff will be permitted to maintain such an action 18 first determined, and if his right is sustained, an inter- locutory decree is entered, requiring the defendants to liti- gate their claims among themselves.^* Pom of appUeation under Interpleader Acts. — Under interpleader statutes and codes, the applicant's proceeding is much simpler and ^ore expeditious, and also less costly, than an interpleading suit in chancery, or a modem action of interpleader. In England, the form of the application « by summons, in Ontario by notice of motion, and in Pennsylvania by petition and rule, calling upon the claim- ants to apnear and state the nature and particulars of their claims, and either to maintain or relinquish them.* In British Columbia the summons must be an originat- ing summons, and where a person seeking the favour of the court, took out an ordinary summons in chambers, his ap- plication was dismissed." ^ lo/Jl^''"^^ .".f **^^^ '""" "^ interpleader summons has ong been used,« one calling on the parties to appear before the court m order that it may exercise it. jurisdiction on the adjustment of the several claims, has been held suffi- cient m its terms.** The claim made by the claimant in sheriff's interpleader 18, m England, regarded as the institution of proceedings, 709 "cal" ^"""^^ ^'^'"^ U"'"" ^- I-°« (1808). 55 Pac. Bep. •See appendix. » A°i '^ '^°" ^"J* ^"^^ (1808). 134 Can. L J 383 m r ^ -Alexander y. Connell (1848). 11 Ir. L R 321 ^ •^• "Frost V. Heywood (1843). 2 Dowl N f ml "^1 TOE APPLICATION AND PROCEOURE. 163 in considering questions between tho ^: claimant.* wtvreen the creditor and tli« Between C. D. ,„d E P M.L . „ "^'^ *° '"'e'pleaU. an action has been commenced fhf . ' *''"^t''- ' ^f ™ade an, entitled in thTl^rn^'^^'-ttl^'^"!' Il^ |Ja.nt.ff and C. D. defendant and E. R cTaimfn » a . " Iff 8 proceeding, which ordinarily arises on of t "^'" generally entitled, « Between A i . J- ^" '*''*•''"' '« fendant; and between Ev t ^ *'"*'^ '"'^ ^- »• ^e- executio^ creditor Id ^heshtr* "V*^ ^«'^ ^' «• be more than one action o/^f '•espondents. Jf there applicant, the muTo^ l^^^rt^^^. ^^ting the It has been held in Ont Jl / "" ^^^"^ «"•" pending, that the vZT^'^J ^' ::'T/' »«"" be sion of the Hiffh rnnr*.»T *^ f^ ^ entitled m any DiW- m.ke an interpleader orde?"' P^-^'-W. «<1 to •n with hi. .ummenrno fee "?!?'"" "^ ''™ «>™' »«> nay be." ' °""'°°' >" Peti'-oa u the SwviM.-The summonj., notice of „„.- ™- he do,, .erved „„ tL prire^rro'ni":;;:::;; "See Chapter IV. ^^®^' ^ ^PP*"- Canada QB. 614. 1. ,j > ■ lit 164 THE LAW OF INTERPLEADER. ■ t i; I I it I -"? otherwise no order can be made against them;** but tho omission to serve a claimant is an irregularity which is cured by his appearance.** If a summons, through somo fatality, is not served on the claimant, a new order mui^t be obtained;-" and when no judge is in chambers on the return day, the matter cannot be heard on the first day a judge is present, without a fresh notice to the claimant, when the latter did not appear the first day." Service upon the agent of the execution creditor's solicitor has been al- lowed in a sheriff's case,** but two attempts to serve a claimant, ana service finally on his wife has been held in- sufficient." Leave will be granted to serve a foreign claimant residing out of the jurisdiction.** The •pplieant'h affldavit. — The interpleader application must be supported by an affidavit, which will satisfy tho court that it is a proper case in which to grant relief. The applicant should make the affidavit himself, if possible. Thi> English practice requires him to show that he claims no interest in the subject-matter, other than for charges and costs, that he does not collude with any of the claimants, and that he is willing to pay or transfer the subject matter into court, or to dispose of it as the court may direct.*^ Sheriff*! aiBdaTit. — In England, a sheriff need not, as a general rule, file an affidavit, and if he do he will not be allowed the costs of it. It has been said that the affidavit is a mere form, as no one can suppose that the sheriff can have a personal interest in the matter. The proper thing for him to do is to wait till he sees if an affidavit is neces- sary, then he can obtain an enlargement and file one." "Burleigh t. England (1838), 1 Arnold lOG; Alexander v. Connell (1848). 11 Ir. L. R. 325; Anon (1848). Bl. D. & O. 264; bnt see Barker v. Pettigrew (1852), 4 Ir. Jur. O. S. 270. " Maslin v. Casey (1882), 1 New Zealand L. R. 138. " Henry v. Mulligan (1867), 1 Ir. L. T. & Sol. J. 262. "Kennedy v. Lavan (1884), 18 Ir. L. T. B. 5. ThillipB V. Spry (1832), I L. J. Ex. 115. "Lambert v. Townaend (1832), 1 L. J. Ex. 113. ■ "See Chapter IV. "Bng. Order LVII.. r. 2; Ont. Rule 1104; see also Bntler v. (1883), 3 L. J. O. P. 62, and under " Claims " and " Collnaion." "Stocker v. Heggerty (1882), 67 L. T. 27. THE APPUCATION AND PROCEDURE. 165 In Ontario, where the application is by notice of motion the sheriff always files an affidavit. It is of some import- ance that his affidavit should show as clearly as possible, where the goods were seized and who was in possession at the time. The court requires this information in deter- mining upon which claimant the onus of proof should rest. In the High Court when the value of the goods does not exceed ^00, the affidavit must contain a list of the goodn, and of the value placed upon them.»» Where a sheriff did not show that the goods seized were the property of the defendant, or that the sheriff believed them to be so, or any facts that would wairant their neizure a* the defendant's, and did not state that the goods were in the possession of the sheriff, or that he had the proceed*, his affidavit was held clearly insufficient.*" Where application if made. — Under the English and Canadian practice the application is generallv made to a Master of the High Court in Chambers, who has all the jurisdiction in interpleader which a judge at chambers pos- sesses. The rules say that the applicant shall satisfy the court or a judge." Applications are seldom made to a judge, or to the court. In England, a District Registrar now has, in matters arising in his own countv, the same jurisdiction in interpleader as the master in London;" but It has been said that this does not give jurisdiction when no action is pending." In Ontario Local Masters and County Court Judges have concvrrent jurisdiction in inter- pleader with the Master in Chambers at Toronto." Ontario County Count—In Ontario, a stakeholder may apply for relief in the County Court in which he is 8ue' 27 Cana' decliloii. before Rule 1123. Me In re II Strange V. Toronto (1879), 8 Ont. Pr. 1. - Enf O^I; ?^??"''' ^}^}l? ^'»«- N- 8. 298: B Dowl. WW. "Co'-Lltt 372 T"' "■* ^^'' ^'- ^'"* ""«• "Se'ThipIer^Sr "*"^' ' ^•""' ''""''"' «• »• ^^ nsil^S^v " "^L ^'"\9 <"*^' * ^» 857: Sterenwn v. Anderson g8\f>'j2^«-,* B. 410. 13 R. R. 126: Aymer v. 0«nlt (1830). 2 PnT How\ ^70)!'2^4 -^Ut Xt.lm!' " "^"'^ ^- ^- "*"' ^*»- ^- THE APPLICATION AND PROCEDURE. 167 As a bill of interpleader admits the indebtedness of the plaintiflf when one of the claimants withdraws all claim to otcou«;.- " '*'"" '' *^^ "*'" ^''^ «« » ™«"" If an adverse claimant, in a sheriff's case, appear, but the execution creditor do not, the sheriff will be order;d to withdraw or to dehver up the goods to the claimant, and will be protected from any action." If the claimant do not appear, he will be barred, and the sheriff will proceed to enforce the execution." But where an order had been made barring the claimant, and it had not been taken out, the claimant was allowed in on showing that the court had entertained an erroneous view of the facts '^ If one cLumant do not appear, but two'or more others do, the question will be settled between such as do appear." ObUfttion on claimant appearing.-If a claimant appears, but neglects or refuses to comply with any order made after his appearance, he will be barred as against the appUcant " A claimant who was ordered to file his own affidavit and neglected to do so was barred;- and when an order pro- vides that a foreign plaintiff shall give security for costs, it will be conditioned, that upon default he shall be barred." When a claimant appears, he must say whether he will take an issue or not, and if he decline to take an issue he will be barred." Pending the enlargement of an inter- pleader motion, an order was made to wind up the defen- dant company, but the court refused to substitute the liqui- dator, for the execution creditor, saying that the latter -S?nl.**"'*'"o''^"- "■• ^'^J Ont- Role "<». "eiS. t^nK^"*^ <*^>' " Canada L. T 7«. -Hnh.I*, ''t?'^'*'"./i^>' " Canada L. T. 202. B.rr,"l8?S);rf "?.V2?8;,^»'i «p^- k' ««= ^'«t"«>o«.e v. 10 Ir. L. T!'i m'j.^jf^l: iutfilS"!"'" '• """'"'^ <^»^«>' 168 THE LAW OF INTERPLEADER, ■ f HI f ^ w t % ]WSm p . " 1 1 must either take an issue or be barred." Where a claimant desired to be barred for the purposes of the interpleader only, it was held, that if to be barred at all, he must be barred wholly, the bar must not be limited to the purposes of the interpleader.** Ezeontioii creditor olaiming or abandoning. — If an ex- ecution creditor abandon his process against the goods, the sheriff has still a right for his own protection to show that the goods were the property of the defendant,"" It was formerly held, when a sheriff had seized without special instructions, that the execution creditor was en- titled to have an opportunity of examining the claimant's affidavit, before being required to take an issue, and then to abandon without being liable for costs." Now, under the English and Ontako practice, a sheriff is entitled, when a claim is made, to instructions from the execution creditor as to whether he admits or disputes the claim, and if none are given, or the claim is disputed, the sheriff can inter- plead, and on the return of the application the execution creditor cannot abandon without being liable for such costs as the court may consider just and reasonable.*^ Claimant's affldaTit,— If both parties appear upon a stake- holder's application, they must each be prepared to sup- port their claims by affidavit, and so must the adverse claim- ant upon a sheriff's application.** In Pennsylvania, how- ever, the claim if made in good faith need not be supported by an affidavit;** but if the goods be in the exclusive posses- sion of the execution debtor, the claimant may be required to file a specific affidavit of his claim, before an issue will • Blake v. The Manitoba Milling Co. (1891). 8 Man. 427, "Doran v. Toronto Snspender Co. (1890), 14 Ont. Pr. 104. ^Baynton v. Harvey (1835), 3 Dowl. 344. "Smith V. Craig (1866), 16 Ir. C. L. B. App. V.; WilltiuB v. Peatman (1877), 7 Ont Pr. 84; Canadian Bank of Commerce t. 7.^'}^^ ^^W' ® **"*• P'- 851; Vanataden v, Vanntaden (1884), 10 Ont. Pr. 428. "Eng. Order LVIL. rr. 16 and 17; Ont. Bales 1115. 1116. "Campbell v. Conway (1856), 7 Ir. Jur. O. 8. 2(J0; Powell v. Lock (1836), 8 Ad. & Ell. 316. "Waterman v. Langdon (1882). 39 L. I. I'a. 373. THE APPLICATION AND PROCEDURE. 169 be awarded.^' It has also been held in Pennsylvania, that a formal statement must be filed by the claimant in a'sher- iff's case, the claim filed with the sheriff is an insufficient statement, when an issue is to be ordered." The affidavits should be entitled in the action if any " They may however be entitled in the same way as the ap- plicant's summons, notice of motion, or petition. A claimant's affidavit should show shortly the ground of the claim. It is only necessary to make out that there IS a fair or prima facie claim. The claimant need not ex- pose his full case, and the court will not g^into the merits or try the question of ownership, except in the cases to be presently mentioned." A claimant should not put in affi- (.avits to support his title as against the other claimant" It is sufficient, if a claimant allege ownership and exclusive possession, he need not set out his title to the goods, nor the source of his title." The affidavit should, however, give full particulars of what is claimed, otherwise the claimant runs the nsk of an order confining his right to what his affidavit demands." It should be remembered, that the claimant in a sheriff's case does not come to answer the sheriff's affidavit, but to sub- stantiate his own claim." A claimant cannot appear by coun- sel and object to a sheriff's right to interplead, before he has legally filed his claim by affidavit. It is not sufficient that he appear by counsel, and that upon affidavits made by other parties it appears that he has given formal notice of his claim to the sheriff." «Burk r Wallace. 4 Del. Pa. 5; 5 Kulp. Pa. 227. ^Prorost V. Alg»o (1889). 8 Pa. Dis. H. 517. .1843r2%"^;,:/rS2.^'^^' ' "'■• ^' «• «^= '-^' - Coyle " R 07? «*'"*!*^'"' ""V ^""'' *" ^- «• Wale. (1880). 1 N. 8. VVnl^s L »pSn i"*'J- ^"'l^fSol^^^' 2 Ont. Chy. Chnmb. 238. ^ Pratt V, Myers (1882), 28 Abb. X. C. X. Y 400 » Hockey v. Eran. (1887). 18 Q. B. D. 300. '.n.«? ^- ^.^J^how (1884), 2 Dowl. 505. •OBrlen v. Sage (1888). 14 Cana«]a L. T. 70. 170 THE LAW OF INTERPLBaDEB. i( An execution creditor, on a sheriff's appUcalion, need not support his claim with an affidavit, because it is foundeJ on the judgment and execution." It has been suggested that when the goods are seized, while in the possession of the claunant, the application should be supported by an affidavit from the execution creditor,*' but this suggestion IS not followed in practice. An execution creditor is fre- quently allowed to file an affidavit as to collateral matter, thus, he may show that the execution debtor was clearly m possession when the sheriff seized, with the object of hav- ing the claimant made plaintiff in the issue, or that the claimant is out of the jurisdiction and should give security or, if he disputes the sheriff's right to interpleader, he may show facts which justify such a contention. When a con- test is between tw^ >;.-cution creditors, the second disput- ing the priority of v'.. first, it is necessary for the second to support his contention that the prior judgment is collu- sive, and for that purpose he may examine the judgment debtor, because it is not likely that the debtor will wUlinglv make an affidavit for the purpose." A claimant's affidavit should be sworn by himself, but this is not necessary, if it is not practicable, when it'mav be made by any one having knowledge of the facts." An affidavit, made by the solicitor of a claimant who resided abroad alleging that from documents in his possession he believed the claimant was entitled to the property, was held sufficient." A claimant has been allowed to substan- tiate his claim by filing an affidavit made by the judgment debtor, in a sheriff's case;'* but where it appeared that there was no good reason why an affidavit should not have 178; PhilHpB v. "Angus V. Wootton (1888). 8 M. & W. 810. "Duncan v. Tees (1885). 11 Ont. Pr. 67. Larscaden v. Zimmerman (1808), Man Armstrong (1892). 12 C. J . T. 179; 8 Man. 48 ■Buechley v. Walker (1880), 1 Leg. Bee. Pa. 829. 6 D. Tum:iTj:::%£''''- ' ^- «• '''- ^« ^- '■ ^- ^- 1«^- * Plues V. Capcl (1880). 68 L. T. Jonr. 854. THE APPUCAXIOK AJfD PROCEOURE. 171 been made by the claimant himself, he was ord.r^^ * r, hi8 own, or in default to be barred.« "^ *'' ^'^^ If a claimant's affidavit be lost he n,«v k„ n , opportunity to file others.- ^ ^' *"''*""^ «" In Pennsylvania it is not an abuse of discretion in ..t appearing i„ the schedule are his under bUl o5 ll IH ' he can verify at the trial ' h„t ««+ / °^ *'"' i; I, f- merits in three cases under thp Fn« Jish practice: (1) where both claimants consent r-rnwif' request of any claimant, if having regarrtTtL^ T I By owuent-The order on a summary dec sion if mad. n^t^i^-o'l^crnoTf ' *'r' " "^^ ^^ ~" - the claiWs « aT f l^f TT *'^ ^*'°««°* «' «" order will be ^t aside a J ^°"* '"'^ ^°'*««°*' *^« oe set aside and an issue directed.** When nibjeot matter imaU in yalBe-In Fncri«„,i *k prac^^ice in chamb is not to tiy the matlf "sSr^-^ when the value of the subject matter is over £50. Si (I860). 2 Ir. J„r. O.Tl5^ ^^' * ^**'"- ^*= »"««""» ^- r.ynch "Coul«,n v. Spier. (1883). 9 Ont Pr. 491. 172 THE LAW OF INTERPLEADER not looked on as a rigid rule of law, but as a rule of prac- tice, not to be lightly departed from, except in an excep- tional case. Thus, where a claimant could not give security, and could not pay the value of the property, £70, into court, and it was not deemed advisable to sell, it was ordered that the matter should be tried summarily in chambers."* The matter in a proper case will be thus tried, although one claimant objects.'* The object of the practice is to save expense, which a small property is not able to bear.** Under the same rule it has been decided in Australia, that there is no definite limit of amount on which the jur- isdiction of the judge depends. It is a matter for the ex- ercise of his discretion, with which the court will not inter- fere, unless it is shown clearly that the judge was mistaken or misled. The jurisdiction is to be exercised whenever from the smallness of the amount in question it appears to the judge right, that the merits should be so determined; no limit of amount is fixed by the rule, nor does it appear that the judge is to fix a limit for himself, nor has the legislature said that different judges are to adopt the same limit. Smallness of amount is relative, it will be affected amongst other things by the probable cost of determining the matter in any other way. On the other hand, a small sum may be involved, and the matter be too complicated for the judge to determine summarily."* Where a question of law. — ^Where the question is one of law, and the facts are not in dispute; as where a claimant by his own showing, has no right, there can be no object in directing an issue and the claimant will be barred."^ Where goods seizod by a sheriff, were claimed by a brother of the debtor, the brother having acquired title through the debtor's assignee for creditors, and the execu- tion creditor contending that the claimant's professed "Victor V. Cropper (1880), 3 T. L. B. 110; see also Topham V. Greenslde (1888), 37 Chy. D. p. 294. "Bryant v. Reading (1880), 17 Q. B. D. 128. "DoddB T. Sliepiierd (1870), 1 Ex. D. 75. »• Carter v. Sternberg (1884). 10 Viet. L. R. (L) 83. •' McKay v. Grant (1894), 14 Canada L. T. 23; nee alxo Davies V. Smith (1885), 10 Ont. Pr. 627. THE APPUCATION AND PROCKDURE. 178 oiraership was a sham and a fraud, contrived to enable the debtor to carry on businesB independently of the demands of hi8 creditors, it was held that the question presented was one of fact, and not one of law which could be tried summarily." It has been held in England that the power to decide summarily without consent questions in interpleader is not a rule of law ' within the meaning of a section of the Judi- cature Act, which enacts that the several rules of law en- acted and declared by thi^ Act shall be in force and receive effect in all courts in England."* Other cam— A summary disposition is also made when the order directs a sale of sufficient goods, in a sheriff's case, to satisfy both the claimant and the execution creditor as well as where the applicant does not make out a case for interpleading, or where either claimant does not appear or appearing refuses to join in the contest, or does not pro- duce evidence of his claim which can be looked at » Every decision of a judge, in an interpleader matter, where ho does not direct an issue, or a special case, is a summary decision.* ^ A ipeoial ctie.— Where the question is a question of law and the facts are not in dispute, the court may, under the English practice, order that a special case be stated for the opinion of the court.* An action may be directed.-If the claimants appear on the application, the court may order that any claimant be made a defendant in any action already commenced, in respect of the subject matter in dispute, in lieu of or in addition to the applicant.* "Rondot V. Monetary Time* (1800). 10 Ont. Pr. 23. Speers v Dareew (1885), 1 C. & E. 503. Gait ▼. McLean (1800). 10 Canada L. T. 163. • Re Tarn (1803), 2 Chy. 280. 'Bng. Order LVIl., r. 0; Ont. Rule 1111- Tmst * Tm^ ^ r^wraaon (1880). 45 V. O. Q. B 176 BanM186S"'r n'^Wl L^'i* ""'* "<*= banner v. European O 178. ' ®"^° ""• I^n^lham (1843), 6 M. & 174 THE LAW OF INTERPLEADER. In this connection " in lieu of " means « instead of/' and not "in the exact position of," and the court cannot im- pose on a claimant without his consent, a condition limit- ing his defence to such grounds as could have heen raised by the original defendant in the action.* Under the English Interpleader Act of 1831, the court might order one claimant to commence an action against the other, as an adverse claimant in a sheriff's case against the execution creditor;* and where a sheriff after a claim made, went on and sold, he was made a defendant in an action so commenced.^ ft»ctice when Mtion wmtinued. — When an action al- ready commenced is directed to proceed, with the ckimant substituted as defendant, the plaintiff must file and serve upon the substituted defendant an amended or supplemental statement of claim or complaint, alleging a right to recover as against the new defendant. The new defendant can then present by his defence or answer, proper issues for trial, upon which the court can render judgment.' In Alabama, where the interpleader statute is silent as to what forms of pleading shall be used, or what issues are to be made up after the new e-fendant is substituted, it has been held to be the duty f a substituted defendant, when he comes in, to propound his claim in writing by setting it forth with such certainty and fulness, with all necessary averments, so that the plaintiff may know in what it con- sists, and be enabled to plead or answer, as he may be ad- vised.* An ittue may be directed.— If the court has any reason- able doubt in the matter, it directs an interpleader issue, the finding upon which will afterwards satisfy it, as to who IHf.'J?"? ^- Mont"*"^ (1888). 61 L. T. 564. Ulllhool- V, Coogan (1853), 5 Ir. Jnr. O 8 244- ■»» ni«t i„ «. Me«ey Docl Board (J863). 11 W. R. 'Z; 1 & 2 Wiil.Tv.! ?^ 4 Slowroan v. Back (1832). 3 B. ft Ad. 108. All. ^^"^'» T: Lawrence (1876), 8 Hun. N. Y 583- Artlol* in ^ Albany Law Joamal. p. 492. "• i^. i. ow, Article in 3 •Coleman v. Chambera (1900), 29 So. Bep. 58 Ala. THE APPUCATION ANO PRtKEDURE. I75 i!?": ? !"^ ""* *'^ *^* ">«"*« "Pon affidavit '• A cJaunant who has sued a af»ir«i,AM , •maavit. A ary way, and not m an interpleader iasue «» without a jury, who flhall l,a„ T f *"^"^' '^"'^ »' or any c J S;^;t ar in'ThVl^ntlf 1^^^ ;;::Ley^-«- as to the dispo JTeltn: X ^J^^ i-M-The direction of the English Act of 1831, and of statutes founded on it was tiZih I proceed to the trial of a feignedllne ^^I P""*'"" wager, and in whirh .n .■ ' ""^P^? « pretended plaintiff ,1 the reqoe^ ^^'. h ^ ""■"'>««t'on that the defendant theirs «t),^,r*"' ■"" '"'' '° *■"> tiff t. p., ^iLT/^ottoT^zr'^r' *,■" '""'°- In Ontano the feigned wne .implv fell o„i „» „„ • ^^' pathy with the English practice^*^ ' °' "'' '° "J"- L. J. C*P^ 18?- ^""P- '^- 10»' -• 1»: Liard v. Butcher (1846). 15 "En«. Order LVII..r. 7: Ont.B„le 1109. 176 THE LAW UK IKTERPLEADEK. PMpu.4ioii tnd deliTtry of imie. — The issue is prepared by the eolicitor of the party directed to be plaintiff in it, and should be delivered by him to the solicitor for'the de- fendant within the time limited by the order. This de- livery consists simply in serving the issue as any other paper is served. The defendant's solicitor then returns it, within the time limited for that purpose, with such anmnil- ments or alterations as he thinks proper. If the plaintii: is not satisfied with the alterations, and both parties can- not agree in settling it, notice of settling in chambers should be given. When an issue is directed, each party lias as much to do with the pleading as the other, and each party is equally concerned in drawing a proper issue to be tried. The issue lis completed at once, the declaration and plea being embodied in it without any interval of time being allowed to elapse between them.^* The Pennsylvania statute requires, that the issue in a sheriffs case shall be a concise statement of the claimant'i^ title, and must be signed and sworn to by him, or by some one for him. The defendant in the issue is also required to file an affidavit, that he believes the plaintiff's title is invalid, and if he makes default in this for fifteen days, judgment will go for the claimant.** It has been held, that the plaintiff must file a formal statement of his claim, the claim filed with the sheriff is not sufficient.*^ Infuit plaintiff. — When an infant claimant is plaintii! in the issue, he cannot deliver the issue until a next friend is appointed, and failing such appointment he may be barred.** Plaintiff in the iane.— The court may direct which of the claimants is to be plaintiff and which defendant in the issue." The proper rule to be followed, is to put in the position of plaintiff, the party upon whom the substantial »Lott y. Melville (1841), Dowl. 882. » Pa. P. L. No. 80 of 1897. " Piovost T. Algeo (1899), 22 Pa. Co. Ct. R. 592. "Grant t. McKay (1894), 14 Can. L. T. 286; 10 Man. 243. » Bn«. Order LVIL. r. 7; Ont. Rnle 1109. TH« APPUCATIOlf AKD PROCEDUHt m onw of proof should properiv «*♦•» ^uu i. -. , «id, that it is often LJ^tLTlhJ y^- '* ''" '^^ TheckimaintwhoMmTdTSlu ^'^ '' plaintiff." ^ mere a ^anSrhratitSlf i ^^^^^^^ *!» ^-" debtor, but suggested that one B c ut^'ti! t" '^^T an assignment, upon settling Ik -.^ ^ "***°*y '^^e' made plaintiff!" '^ * ^''^ '''"" ^^' '^'«^«°t B. was Where the proceeds of a life inanr-nno i- chiimed by the widow of the assur^ .nd?i k ^^''^ '^"'^ for value, and it appeared th«T!i 1"? ^^ "° ""«°«<^ declaration in wntiS on thJ * a»««red had first made a to his Wife, anTiTi r^h^rn^; rS' *^« ^-«* :r;r^tre^:Lrc5r-r -J. be^aintiff ^thtrr^llr it^e .^ ^^^ •«- t^epo^:"n^n::etrn%Xr:dr^" T" ^" possession by the debtor" i"-^ "' ^'' '*^""«« him;" anc the clailnT .f?"" ^^*'' ^"'^^""^ "^ ««e in the 'time of seij^re ^ "l^r "-'^P'--^^* ^'t'^ough at claimants bailee «• ''*' '° possession as the the^lS"Srt^r:r*^«-^«P^--andan whers:[:erthro^,?,ri" ,r ^^^^^^^ °^ *^^ «'^--t ^^ , tne onus ,s on the execution creditor and he HMO). 1 Ir. Jnr. o. 8. ug """^ ^ T. 23; see also Holt v. Kelly - JaL'?""Hln!,V'^kif ?rV I^- «09. P«»- p. L. No. 80 of 1897. M.t.I. 19 178 THE LAW OP INTHU'IJUDIER. m*'' should be made plaintiff in the iMOe.** It make* no differ- ence, that at the time the writ waa placed in the aheriff** hands the debtor alone was in possession.** ^ It has been said, however, that when the claimant claim:) title by transfer from the execation debtor, the former should, as a general rule, be made plaintiff in the issue, whether the goods be in his possession or in that of the execution debtor at the time of the seizure, because it is generally reasonable that he should be required to prove his title, and that subject to thu rule the person out of possession should be plaintiff." When the goods are claimed by the debtor's assignee for creditors, the rule'seeros to be to make the assignee plaintilf in the issue.** It frequently kappens, that both the debtor and the claimant are in possession when the sheriff seizes. If the debtor is tenant or owner of the premises, or the goods are such as can only be used by im, the claimant will generally be made plaintiff. On the other hand, if the claimant is tenant or owner, or the goods are such as can be used by him alone, tlie onus will be on the execution creditor. Thus, when husband and wife live together in the same house, the husband being tenant or owner, and the wife claiming household goods, not being articles for personal use, such as jewellery, clothing, and the like, she must make out her claim and be plaintiff.** Where a doctor's horse and medical books when seized were claimed by his wife, she was made plaintiff.** "Hammlll v. De Wolf (1861), 10 Upper Canada C. P. 419; ?"^ ,io.«^T?''^^*S^' " ^PP*' *^°«^» C. P. 292; Duncan v. Teei, (1885). 11 Ont. Pr. 66 & 296; Freehold Loan v. Bryaon (1891). V S"?^ ^'"'^* ^- ^^^^'' ^■''"y ^- P*^'*"- 0901). Jl Canadian ^ Z\^'' "** ****"^ Wingfleld V. Powlle (1887), 14 Ont. p. 107. -Union Bank v. Tiixard (1893), 9 Man. 149; 13 Canada L. " Doran v. Toronto Suspender Co. (1890). 14 Ont. Pr. 104 1. /.^SSr^''; S**''^i^^*^- ^ **• * S. 156; Northcote v. Bean- r'™'* 11^*^:.^ ^- * ®- 1^: Bentley v. Hook (1834). 2-Dowl. 3.10- 4,Tyr. 229; Dibb v. Brooke (T894), 2 Q. B. 338 «r !!^*'5!'i2?™ ^- 0"">««« dant in that which ^f '^"'^ '^" '^ ™"de defen- OwL* i *v . ^* commenced first." infom^The efuL^rct'TJlr^^^^^^ ^^"" ^ ^--*«d to framed with a^ew Tf Jj^" 'T' *"^ ^^^'^ ^^ey are arise, they are%;mti:'prira?i'^^^^^^ *^ to inform the court w4h ^ >.« -I ^ ^''* ^^« property in question or wh I PJ"*''' ^' '"""^^ to the It irimma^eriaHn »' I t "" '*'^ '« «°"t'«d to a part." to the g^et , or thf T' "'^*''" *^« ^^ «'- g seized, or the goods seized or any part thereof. Bafkl?^^. ?SS.^^TV-,^-"aPJ34; Strie„,er v. Merchant, " '• """'»" ""»• M W. ROfflTso L. T. 37, 057. 180 THE LAW OF INTERPLKADBR. Under the former words the claimant may prove owner- ship to part of the goods.** v Tom of the israe. — The form of issue in a stakeholder'^ interpleader is usually a simple issue, as, whether the plain- tiff or the defendant is entitled to the subject matter, or whether the plaintiff is entitled' to the goods as against the defendant.** In a sheriff's case, where the property has been seized in the possession of the execution debtor, the issue is, " as to whether it was the property of the claimant at the tinu> of the seizure as against the execution creditor." The onus is on the claimant. Where money realised by a sheriff was claimed by a receiver the issue was, whether the money iti the hands of the sheriff was the property of the claimant as against the execution creditor.** Where goods have been seized in the possession of the claimant, the usual form is, " whether at the time of tlu- seizure the goods in question were exigible under the execu- tion creditor's execution as against the claimant." Then- should be no doubt from the issue, that the onus is upon the creditor, to show his right to have the seizure made.*' The proper form of issue betwet-n a cla^mant and an attaching creditor, is, whether the goods taken under t1u> attachment were, at the time of the seizure, the property of the claimant as against the attaching creditor, and not n^* against the absconding debtor. It must be assumed that the attaching plaintiff is a creditor in fact.** Where a con- test was between an execution creditor and an attachin;;- creditor, an issue was directed as to whether the judgment creditor's judgment and execution were fraudulent and void as against the plaintiff and his attachment.*^ *■ RtephPHK T. Mo Arthur (1880). Canndn L. T. 2mt; (i Mnn. 111. «8<>(> Rom v. Bilwnrdti (1894). 14 Ont. Pr. p. R2fl. ** Dibb V. Brooke (1S94). 91 Q. B. p. M8 ; Alexnniler v. Hnmlv (1848), 11 Ir. L. R. 328; Titrkin t. Gmham (1883), 2 New Smith WnlfM L. R. 65: Soholltuhenter v. Fl«her (1880), 1 Ijfg. Rec I'n. SnS: Kerler t. Hailcwood (1884), 1 Man. 31. " Duncan t. Teea (188ft). 11 Ont. Pr. flO ft 2«l. " Doyle V. LaHher (18fl(t), l«t ITpper Ganaila C. P. 203. " Hail V. Kissoek (1858), 11 Upper Canada Q. B. 9. THE APPUCATION AND PROCKDURE. 181 Where it i« intended that only the debtors special in- temt m the goods shall be aold by the sheriff under an execution and not the goods themselves, the issue must be framed to meet such a case, namely, the right of the claimant as against a sale of the interest of the debtor ♦• When a sheriff interpleads upon a landlord claiming, and one question is, whether the sheriff abandoned the sei* ure the issue should not then be, 'whether at the time ^^v'nfT'', ^ *'*' '•'"'''' ^^' ^'^^ ""^^ *"« th« Pro- ^ L I. l^*?*"* "* "«"'"«* *'•'-' '^»««»««n creditor.' but should be. 'Whether there was a seizure by the sheriff ^t all and If so whether it was abandoned, and if there was a seizure whether the rent due at the time of the seizure had been paid m full.' In such a case, the landlord claiming. Z not raise any question as to the ownership of the goods All he claims is h.s right to be paid under the Statute of Anne « Where a receiver interpleaded, the issue was. whether h claimant, a Uquidator. or the creditors who had obta Led he receiving order, were entitled to the amount of a bal- ance which had come to the hands of the receiver.- th.n^hTt!TrK*^ ' ""• i«w.-Other questions. iiditv of ."n " ^™ '"": """' "^ ^'"^'^^ «"^h as thJ validity of an execution creditor's judgment against credi- tors generally, and that it shall he o^n to a1^ taching irl olr , / * P«''^"*"««" One party to the issSe orJor that r Tf" '"**^" «'^'"'"''*"« «* *he trial, in onor that the real dispute between the parlies may be As a. tr" 1- '""'. '"'^ ■■" '^' •'»»«'"-^ '«""«• proof." A an issue is directed to ascertain facts, with a vinv to "Itenor proceedings, it has been said that there is no rlo„ 'Pooler T. OooOwiu (1835), «\n. &T ^, f^i ^ ^. ^^ 182 THE LAW OF INTERPLEADER. S! why the coart may not for such purpose vary the legal posi- lioM and rights of the parties, by directing that a partner- ship, or bankruptcy, shall not be set up, or that a ^tness wholly incompetent in point of law shall be examined upon the trial.'* It is not proper to allow a claimant to add to the issue a plaint against the execution creditor for damages for tres- pass.'* Time from which title mnit be shown.— In stakeholdt rs interpleader, the plaintiff in the issue must generally show that the property was his at the time he made his claim. In framing the issue upon a sheriff's application, the general rule is, to make the party upon whom the onus is placed, show that ke was entitled to the goods at the time of the seizure, not at the time of the delivery of the writ to the sheriff. The substantial fact to be tried must always be, whether the sheriff rightfully interfered with the pro- perty, in other words, can the claimant show, that when seized, the goods were his as against the execution creditor.'-' In England from 1856 to 1894 the goods of an execu- tion debtor, as against a purchaser for value without notice were bound from the time of the seizure by the sheriff, bin prior to and since this period, are bound from the time the writ is placed in the sheriff's hands." In Ontario they are bound from the time of the delivery of the writ to the sheriff to be executed," and the law seems to be the same in Pennsylvania." It has been held in New South Wales, that the lodging of the writ of fi. fa. with the sheriff is a judicial act and binds the goods from the earliest possible' hour of the day."* "Woodford v. Bosanqnet (1843), 5 Q. B. p. 321; D. & M. 41f». "OUver V. I^ewls (1889), W. N. 224. "Von Every v. Rom (1861), 11 Upper Canada C. P. 13;{; Keeler v. Ha«lewood (1884). 1 Man. 81. •• 19 A 20 Vict. Imp. c. 97, s. 1; 56 & 57 Vict. Imp. c. 71, a. im<. " See Ont. Rule 859 of 1888 and 29 Charles II.. c. 3, s. 16. • "Lafferty v. Cormlck (1874), 1 W. N. C. Pa. 267. "Thompson v. De LiB»a (1881), 2 New S. Walea L. R. 163; I^ver v. Shepherd (1891). 90 Law Times 339. THE APPLICATION AND PROCEDURE. 183 It has been pointed out in Ontario, that the form of the issue follows the practice established in England under the statute of 1856, which was not enacted in that Province, and makes the question of title relate to the date of the seizure, and not of the delivery of the writ to the sheriff."" On this issue the question will arise, whether the property was or was not bound from the time of the delivery of the writ.** Although the goods of a debtc. are bound from the de- livery of (he writ, yet the property in them is not changed by It, and w still in the debtor, and he may sell them sub- ject to the rights of the execution creditor, to which they will be liable in the hands of a purchaser," from whom they may be taken by the sheriff.*' In many cases it does not make any difference that the plamtiff has to show title at the time of the seizure, because he wiU generally have to show that the goods were his at the time the writ was placed in the sheriff's hands, in estab- lishing his claim to them at the time they were seized In some cases the issue has been as to the ownership at the time of the delivery of the writ;** in others as to owner- ship at the time of the seizure, and always thus when the property is only bound from the seizure.*" In some cases the issue has been, as to whether the goods during the cur- rency of the execution were the property of the claimant as against the execution creditor.** If a claimant can show a valid title to goods, and the title had Its origin before the seizure, it would of course be •Whiting V. Horey (188B), 13 Ont. App. R. p. 14 . ^Levy V. Hart (1808). 7 N. 8. Wales S. C. R. 1«J "Samuel y. Dnke (1838). 3 M. & W. fi22. Ont App eS "''• ^^'' »««t»"">Pt '• Man- (1883). SJO I'm-- 1 f> 184 THE LAW OF IimitPLXADKR. fatal to his interestB to have the issue, as of the time of dehveiy.** • "/iff**^?'^*^*'"^*^'-" the plaintiff In the issue fail to dehver it within a reasonable time, when no time 18 mentioned in the order, a new order may be ob- temed or the original one amended, limiting the time for Its delivery; and if this is not compUed with, a further order may be made barring the claim, and directing that the subject matter be delivered to the defendant in the issue." Iwne sent to inferior court. -In England, when the amount or value of the matter in dispute does not exceed five hundred pounds, the High Court may order that any interpleader proceeding pending, or to be commenced, may be transferred to a county court." Under this provision the entire mterpleader proceeding must be sent, and not merely the issue for trial.'* In Ontario, upon a sheriff's application, where the amount claimed under the execution does not exceed $400 exclusive of interest and sheriff's costs, or where, in the opimon of the court the goods are not worth more than $400 m value, the High Court may order that the issue shall be draw^ up and tried in the County Court of the county where the goods were seized, or in any other county if it shall appear more convenient, and all subsequent proceed- ings up to and inclusive of judgment and execution shall be had and taken in the County Court." And where the amovnt of the execution, or the value of the goods, does not .xceed $100, the issue may be directed to be tried in the Division Court, and thereafter all proceedings must be carried on in that court." •47 & 48 Vict. c. 01. 8. 17. •• Vi«ard V. Gin (1883). 05 L. T. Jo. 255. " Ont Rule 1125 (1). "Ont. Rule 1126. THE APPLICATION AND PROCEDURE. 186 ^ These proviBioM apply only to gherirs cases, and under the County or Divwion Court." It has been sufr^rested t7:il "?'r ""'' ''""""'^ ^^'^' preserveS'CIt by the Ontario Judicature Act, issues in stakeholders' caL may he sent by the High Court to the County CourtT tml;"but the order must be made by the court and n^t by a judge or the master;" and in the Absence of aiy e"prei i:^rtiie"cor z^^^^ "^- • -^- --"- a county court action, to make an order that the tun ! ZZ^^r '''^'^' ^'^ ^^ ^'^^^t substituted%rrtl When interpleader proceedings under the Enrfish Act are transferred, by an order in The ordinary ^^ To the STcltvT' !?\t"? "^ "''* * ^^'y to\eT;ue and by a^cLt'r'*?/? '"""i '" '^™^' ^y *'«°««"*' •>« tried .^ hP Z ^ f ! •^"'^«' ^'^^ ^'^ °° jurisdiction to hear It, he may refuse to try it, although it may be under the order of a Superior Court." nnf,?.i . """^ ''^ ^^""^ '°' trial to a County Court otlt'7ti«!;" '"" "^ *^"*"* 'y P"^^- '^P-ting each «w« '■''"' ^- B««^k (1882), 9 Out. Pr 2(58 ;^WIl.an T Wil«on (1878). S Ont Ann So not rSrSS"" ^- hooper (18W). Ont. I^trn. J.. ,„ Chamber, -Houeh .. D5rSi.^^"Vi?2)^26 Ir. L. T. » Sol. J. 879. 186 THE LAW OP INTERPLEADER. Itnie innMted by court.— In a Canadian case, where a foreigner wag arrested and his money taken possession of by the constable, Upon being discharged, he sued the^ con- stable. Insolvency proceedings were also instituted in re- spect of the foreigner, and the assignee sought to intervene as plaintiff in the suit for the money. This was refused, the Court suggesting that the assignee sue the constable, so that the latter might apply under the Interpleader Act, and have the question determined upon an issue.** More than one imie may be neceiiary.— It sometimes happens, when there are more than two claimants, that the direction of a single issue me^ not conveniently determine who is entitled to the ubject matter in dispute. This is most likely to occur in sheriff's cases. Thus where three claimants each claiibed different portions of the goods seized, upon the sheriff interpleading, three separate issues were directed.'* In Ontario, the present practice is to direct as many issues as may be necessary to fully determine the rights of all the claimants, the issues to be tried together, or one to be tried first, and others to follow, as may appear necessary in working out the matter." One of the rules in the On- tario Judicature Act requires that in every matter pending before it, the court shall have power to grant all remedies any of the parties may appear entitled to in respect of every claim properly brought forward, so that as far as possible all matters in controversy between the parties may be com- pletely and finally determined and multiplicity of proceed- ings avoided.** In an earlier Ontario decision, which may now be con- sidered as partly superseded, it was said, that if the execu- tion creditor's claim is removed there is no further reason for the suit. The different claimants may then settle "Mellon v. NlchoUs (1868). 27 Upper Canada Q. B. 167. " Ar.g«.l ^. Baddeley (1877). L. R. 3 Ex. D. 49. rPHn^^^^^n ^^.^'"•'Ir a883) Ont.. Roae. J.. In Chambers, not K-ported, Canadian Bank of Commerce r. Daniela (1898), Ont., Boyd. C. in Chambers, not reported. •• R. 8. Ont. 1897. c. 51, s. 57 (12). THE APPLICATION AND PROCBDURK. 187 their rights 88 they may be advised among themselveg the P^pose the isBue being answered by its Lng settled t a the execution creditor is not to have his execution satisfied out of the goods seized by the sheriff. In this case there were two execution creditors and three other claimants, and a^l five claimed the goods, the execution creditors disputing each other's priority. It was held proper to direct twf TffTndt- /h° ''^'"*' ""^ execution creditor to be plain- tiff and the three claimants defendants, and the second be- ^en the two execution creditors as to the priority of their creditor could not be joined with him, in an issue against another claimant, and that where there is one execution creditor and several claimants the proper order is to make the creditor plaintiff and all the cla^aJts def endls « nl»Jr^"7 ^^*''"■*' P™*'"^^ '' *» P'«^ide in the inter- St if nl^ "^W"' ^^^'^^^^ «* ^^^-^ It ^o"W seem, lilll^ trLd h5 ^'-'f *^"* ' ^"y ^° *^« «^d", the is.u although formerly all issues were tried by a jury «• questln^T7'r" *'^^^«»--^ «- usually considered questions for a jury in interpleader matters: Chance of possession," delivery of possession, " whether negotu't on been sold to the owner or his contractor,'" when a wife ehiims as her separate property and the title depends on he question whether the husband has neglected to provide for his wife,- and generally when there if a conflictTt^! Mason (l^ir?Q'k°g'.'Sel'^\« "^ ^.P ^^^ Levasseur v. DodgjTS P..T' '''^^' '^ ^"- «"^- «24; Mandevllle v. -Goddard y Weil (1805). 165 P« 8t 419 "« T ""• ^^'^'^''y <18»*). 1«0 Pa. St. 100 "Bemhart y. Mitchell (1887). 7 Atfa ^pr. Pa 283 188 TH« LAW OF INmPUCAOKR. timony m to ownewhip," or when an arrangement has been by parol.** AFpliout'a poaition wken odtr auida.-Ag goon iM an interpleader order is made directing an action or an mue between the claimanta, all questions as to the applicant's right to relief are concluded by the order ;•♦ the stakeholder has no longer any interest in the proceedings to follow, and cannot be heard in them or be affected by the final decree- his duty as a stakeholder is at an end;" and if the appU- cant die the claimants may proceed without reviving the cause.»« When the claimants are entering on the final trial of their case, it is not competent for one of them to vary the pleadings by amendment so as to raise questions with the complainaijt touching the amount of the fund waste, etc.;" nor can they call upon the stakeholder to pay over other moneys as to which he did not interplead." In the United States, although the parties to an inter- pleader suit live in different States, the cause will not before the complainant is dismissed be removed into a United States court, because the complainant is not a nominal party. He has no right in the subject matter, but there is some- thing to be settled between him and the defendants before the latter can litigate together." Where lane filed and tried.— An issue, as soon as settled, 18 filed, and thereupon the parties get ready for trial, as in an ordinary action. An Ontario rule provides that the issue when settled shall be filed in the county in which it is directed to be tried, and thereafter the proceedings are carried on in such county, in the same manner as the pro- ceedings in an action commenced in such county, but the ;;] Houghton v. Moyer, 7 Kulp. Pa. 68. Zll*^«"'* ^- ^'^«* ^l**!)' 143 Pa- St. 687. ^PhillipB V. Reagan (1874), 75 Pa. St. 881. diLtriTf^ul^. ^- ^»'"l'*,ii!®*^' 1® »• 288: Smith T. Emigrant In- dustrial Savings Bank (1888), 17 N. Y St Rpn 8K2- R.i«h<». « STn'^^J'^^- S»°, 11 Bllgh. N fl IRR Leonard v. Jamison (1833), 2 FJw. Ch. N. Y 136 " THl APPUCAnON AND PB0CX017HI. 189 place of trial may be changed to another county.* Before thia rule was enacted, when no locality was pointed out by the order, the proceedings were taken in the principal office at Toronto.* The issue should ordinarily be tried in the county where the goods are seized, in sheriff's cases, but where the sheriff IS to remain in possession of the goods of a going concern, a speedy trial is so important, that for the purpose of secur- ing It, the issue may be sent to another county, having re- gard to considerations of expense and c$mvenience.» Votioe of trial.— It has been held in Ontario, that notice of tnal of an interpleader issue must be given as in other cases, although the order directs it to be tried at a particular assize, because it is reasonable and convenient that notice be given, in order that the defendant may prepare for trial * In Manitoba it has been said that if notice of trial be given by a defendant in an issue, it will be set aside as irregular if the plaintiff fail to proceed the defendant should move to bar him." The plaintiff in an issue is bound to proceed to trial without delay, although no precise time has been specified in the order. When a claimant comes in to stop an execu- tion, he must not be guilty of unnecessary delay' Where a claimant did not go to trial, and the execution creditor applied for payment out of court, an order was made that the claimant go down at the next assizes, that the costs of the day should be paid forthwith bv the claim- ant, while the costs of the motion were directed to stand • Iiwe directe to rtand.-Where the question in dispute on an interpleader issue, may be decided in a pending action to which all interested persons are parties, the trial of the 10. ' Opt. Rule 377. 'Dominion v, Kilroy (1887), 12 Out. Pr •Parley v. Pedlar (1901), 1 Ont. 570. (188irrOnJpr'*7^' ^'^*' ' «"*• ^'- ^«= ^^ ^ ^"O" 'ConWn T. (1848), 12 Ir. L. R. 75. Kimberley v. Hickman (1846). 1 Sanndera & Cole. 90. 180 THK LAW or INTERPLXADEB. iwue will be directed to stand pending the trial of the action.* In Georgia, where one claimant filed a bill against the stakeholder, and the other sought by injunction to restrain him from paying the fund over, the court directed the fund to be paid into court, and that the stakeholder should be discharged from all liability. On appeal the court refused to disturb the order, remarking at the same time that it would have been more regular, if the holder of the fund had filed a bill of interpleader.* OiMorery and iupaetion. — The English interpleader rules provide that the ordinary rules with regard to dis- covery and inspection in actions shall with the necessary modifications apply i to interpleader issues." In Ontario, the rules which provide for examination and discovery, now apply to issues as well as to actions." In Pennsylvania the same practice prevails." Where one of the defendants in an mterpleading suit moves for a commission to take the evidence of a witness, it should be upon notice to both the plaintiff and the other defendant." The rule which allows one party to obtain discovery from the other, applies equally between the defendants to a bill of interpleader. The only real contest is between them, and one defendant can be looked upon as the "oppo- site party " by the other." In an action of interpleader, where the defendants were rival claimants to a tin box and its contents deposited in the vaults of the plaintiff's, a safe deposit company, an order •Brown v. Nelson (1884). 10 Ont. Pr, 42. Simmons V. Mansfield (1864). 33 Oa. Supp. 9. Wh.to *w ':^*'"«^L"- •■• ^- *"«•■ «!«««•««»» b*'ore the rnles see White V. Watts (1862), 31 L. J. C. P. 381- 12 C B V S 9fi7. rn re Mersey Do<;k Board (1863). 11 W R 283 " ^^ ^^' '" r„„ ? i> ""'*' *^' ***• *'«■• decisions before the rules see "Kibbse V. McKinley. 47 L. I. Pa. 4. Appendir*"" "' ^"•='""""' <"««>' 1 C«^ -taS: see Alabama Code in " Perkins v. Morgan (1899). 33 S, B. 705 (Ga.). TH* APPUCATION AND PBOCBOURI. 191 for the inspection of the books, papers and contents of the box, with penniMion to make copies was held proper.** »ttti«lMfc— Upon an issue directed on a sheriff's inter- pleader, the execution creditor, defendant in the issue is entitled to an order directing the cUimant l-. specify the good, ckimed by him, because if the goods not claimed should be of sufficient value to satisfy the execution credi- tor's debt, the issue would be a useless expense." >«ii-rait.~A plaintiff may be non-suited on the trial of an issue under the Interpleader Act.»V Iiroe euinot be amended.-On the "trial of an inter- pleader issue, the issue as directed by the interpleader order cannot be amended at the trial;" if either party is not sat- isfied with the form of it, and desires to have it amended, he must move in the original proceedings." Scope of israe limited -When an issue is directed to determme whether certai goods are the property of one claimant or the other, it i^ a statutory proceeding for that purpose alone, and cannot be made to cover other matters- thus where an interpleader was directed to determine con- flictmg claims to property distrained for rent, between the landlord distraining and a third party claiming the pro- perty or its proceeds, it was held that there could not be rendered in such proceeding a judgment for money, for the value of the property, in favour of th- landlord against the adverse claimant, although the latter had received the property or its proceeds.*" Matten retenred until after trial.— The practice upon a bill of mterpleader, when an issue is directed, is to provide in the decree or order that all costs and other matters not disposed of shall be reserved until after the trial of the issue. The effect of this is, that the parties are required Rec" *^*'**''^'* ^"'* Deposit Co. v. Hassiey (1896), 1 N. Y. Law '•Price V. Pinmmer (1878), 26 W. R. 682 Bryson v. Clandlnan (1850). 7 Upper Cana Q. B 108. "Grant t. Hill (1863). 5 Phila. Pa. 173. "ShlDKler y. Holt (1861). 30 L. J. Ex 321- 7 H A- \r <«. Price V. pinmmer (1878). 26 W. R. eS2 ' ®= Baiilett v. LouQdea 0890). 34 W. Va. 493. in TBI LAW or IimERPLBADKB. laa;;.; to go Uck to the tribanal directing the iMiie for further directioM, and a final order after the trial is over** Fonnerly thi. wa. alK> the uniform practice under the Englwh Interpleader Act. After the trial of the issue the matter went b«jk to the judge at chambers, subject to thi«. that he was then obliged to accept the findings upon the Mjme M one of the fact, in the case, and he would then make his order and settle what was to be done under the circum- Jtences." When the interpleader order was made in cham- bers. It was necessary to go back to chambers for the final order, the court had no jurisdiction under such cireum- Btances. In England it was necessary to go back to the same judge in chambers, but in Ontario, an, judge in chambers iuia jurisdiction.** » Under a recent English rule, which is also in force in Ontario and other Provinces, the court or judge who tries the issue may finally dispose of the whole matter of the inter- pleader proceedings, including all costs not otherwise pro- vided for." The judge who tries the issue, proceeds and makes an order upon it, in the same way as the judge at chambers formerly did," and in making such order he acts as a judge m chambers.** The rule wisely prescribes that the judge who tries the issue shall be clothed with the power, If he choose of finally adjusting aU the rights of the parties, mstead of the judge at chambers. It confers upon the judge sitting to try the issue, all the authority and all the functions of a judge sitting in chambers. The judge trying ^See Kebel v. Phllpot (1888), 9 glm. 614. J. Q. bT"^ "*"" ^- ^- ^""*"'* <*^>' 2 Q. B. 329: 63 L. J. O. S S». 2 Ont St^ ^n """"'" ^^^' ^ ^'PP« Canada L. Ont Pr! 276. ' *^°"»«^~»«» B»nk v. Clark (1855.. 1 »Bng. Order LVII.. r. 13; Ont. R„le 1114 L. J Q.TI S"'"* ^"- ^- ^-"•"'^ hy (1887), 12 Ont. Pr. 338 ^mlth V Darlow (IWM), 2({ Chy. H. «t05. MInck.u V Biblo (1888), 12 Ont. Pr. 482 T. L. r" mi. ""•""" ^''' ^- ''•'"*""^«' ^«»). 2 Q. B. 329: U -Horton v. Baptint Church (18fll), 34 Vermont .^10. CHAPTER VIII. THE INJUNCTION. Object of the injunction. — The injunction, or stay of proceedings, in interpleader, is always the chief object whicli a harassed stakehoWer or debtor has in view, as it protect him by staying actions or suits which have been actually commenced,! and by restraining the institution of threat- ened or prospective ones. The injunction is almost always* (.1 course, if the case be a proper subject for interpleader.'^ Termi "injunction," "stay of proceedings."— The casts in which courts interfere, by way of injunction, are usual! v classed under two heads, (1) injunctions to prevent the in- equitable institution or continuance of judicial proceedings, and (2) injunctions to restrain wrongful acts unconnected with judicial proceedings. It is in the first of these classes, that the injunction granted in interpleader suits lies, and it will be found, that the equitable principle and practice of staying and preventing vexatious actions is now em- bodied in most interpleader codes, or in the procedure under them. When the expression 'stay of proceedings' is used, instead of the term injunction, it is a mere chango of name, and not of the nature of the proceeding. Actions against ttakeholder. -As already pointed out, if a stakeholder makes out a case proper for interpleader, the claimants' actual or threatened actions against him, for , ' HIlHani v. HnoHon (1882). 21 Chv. Div. 00 'Crowshay v. Thornton (1837). 2 M. & C. p. 19 Begnnt v Wood (187»). 12 Chy. DIv. p. 630. ^ THE mjUNCTIOS. jg. tie subject m.«er, will u .toyed „ . „.„„ „j „„„„^.., 1 ;: u"^T "'"- "»' - «"^."' ^- not ;;:; bank h^U A K 1 following circumstances :— A bank held debenture stock in a railway for three custompr; iVtt '".nl customer-, data w„ Llained. He then Ttl'irrjis: vitxf^r;^^ justified in what if Ai/ a *^** ^^^ ^^"^^ *«» J leu m wnat it did, and was not liable" awe M to protecting the iheriff —Sheriff. ^ .^ orthrcotint' r t ;"- -'^^^^^^^^^^ relie ofTheriffs tL t"h '"^"P^^^'^" ^^^^ -- made in - brought b^foreTho '^1'^"'°'' ^'' '^^^^ ' ^l«"«-"t against the sherff i''"'*' ?' ^' ^'^"^''^ «^ ^is action creditor. The claimant will be barred of any ac- (Md.) 358. • ****• 'owler r. Lee (1830), 10 G. ft j. "" UHHl), 20 Upper Canada Q. B. 550. 198 THE LAW OF INTERPLEADER. «! |.*l- tion against the sheriff whether he maintains his claim, or refuses to come into court to establish it." The sherij! will also be protected althougli the execution creditor may not appear.** In Pennsylvania, the sheriif is freed from all liability to the claimant, the execution creditor, the execution deb- tor, the person in possession, and all other persons who have knowledge of the seizure." If, however, a sheriff enters the promises of a stranger to the writ, and there seizes and takes away goods, as the pro- perty of the debtor, he will not, upon interpleading, receive the usual protection, when it appears that a substantial grievance has been done to the person whose premises arc thus entered." ' It has been held in Iowa, that the statute there in force, which allows a sheriff to interplead, has reference only to actions for the recovery of specific personal property seized by him, and does not allow the substitution of the attach- ment plaintiff for the sheriff in an action against the latter for trespass committed in executing the writ." In Pennsylvania the granting of an interpleader issue does not relieve the sheriff from responsibility for a prior trespass in levying on goods in the possession of a stranger, which are subsequently sold on the claimant failiug to give security, in such a case the sheriff in order to protect him- self should apply for an interpleader before making an actual levy. He will be protected however from all acts Jone after the order is made.** Where it was charged that the sheriff had been guilty of misconduct after the seizure, and the execution creditor not appearing was barred, an order was made that the claim- ant should be at liberty to commence an action against the •Laraelere v. Hanbert (188B). 109 Pa. St. 516. "McCom V. EBher. T. & H. Pr. Pa. Sec. 1139. . "Pa. P. L. No. 80 of 1897. "De Coppett T. Barnett (1901), 21 Times L. R. 273 (C. A.) " Sperry r. Ethriagc (1886), 70 Iowa 27. " Zacharias r. Tolton (1879), 90 Pa. St. 286. THE INJUNCTION. 199 sheriflf to try whether the claimant had sustained any dam- age, and if so what amount, through the misconduct of the sheriflf subsequent to the seizure." When a sheriff, in levying an execution, enters the pre- mises of a person other than the execution debtor, and there seizes goods believing erroneously that such goods belong to the debtor, he may, in interpleader proceedings, be protected against an action for trespass to the lands, as well as against an action for seizure of the goods, provided he has not acted wrongfully and has not exceeded his duty.'* If an action has already been commenced against the sheriff, it will be stayed upon the interpleader applica- tion." It is not proper for a claimant to bring an action against the sheriff before the latter has had time to inter- plead, if he do so he will be ordered to pay his own costs, the claimant should wait and see the result of the notice which he has given the sheriff;" and pending the inter- pleader an action will not lie against the sheriff." It has been decided in Iowa, that the statutory provi- sions which allow a sheriff who has been sued to interplead, are unconstitutional in so far as they assume to discharge him from liability, because they deprive the plaintiff of rights which are in the nature of property, without due process of law.** When, in a sheriff's interpleader order, a clause is in- serted that no action shall be brought, the words " no ac- tion " mean, no action against the sheriff,'* and when the order so provides no action can be brought." "Lewis V. Jones (1830); 2 M. & W. 203. Cpltrh^iM"'n^.®??*';j'''S*'!^<^^>' 23 L. J. Ex. G2: Smith v. Critchfleld (1^), 14 Q. B. D. 873; see to the contrcry Abbott r Richards (1848). 15 M. & W. 194; Hollier v. Laurie 0^6) 3 C. B. AM; see also chapter VI. 0: On^^Ruirim***" ^^^^' ^ ^'- ^'■- ^'' ^'"'- ^"*" '^^'"- ■•• IIHillllard V. Hanson (1882). 21 Chy. Dir. «i9. Kleber v. Hamilton (1878), 2« P. L. .1. Pa. 100 (1883)®'S7owrm.'^'' ^'^^' ^^ '°^" «^1= ^'"'"•^ ^- ^•"»«*«"' > wT*** ^' ^",5 *^P* ""^ ^o- ^1877). 3fl L. T. N. 8. 4(J7. cHtchS7i^)""if STVis:- "" '-■ '■ ^"'^ ""■' «»'*'' ^- 200 THE LAW OF INTERPLKaDEB. 'Km As a general rule the order protecting the sheriff covers an action by the execution creditor, as well as by the claim- ant. An execution creditor can only sue the sheriff^hen he has been guilty of some negligence in executing the writ and sometimes the creditor's right of action against the sheriff for such negligence has been reserved by an inter- pleader order." It has been said, that in an action against a sheriff for not selling under an execution, he may set up the title of a third person, though the latter does not join issue, under the rule for an interpleader." Whether a sheriff has seized under special instructions from the execution creditor or not, if the creditor takes an issue with the citimant, the order gives the sheriff full protection by direc^ng that no actions shall be brought agaiast him for the seizure.*' But, if on the sheriff's appli- cation the creditor declines an issue, and disavows the act of the sheriff in seizing, he will be barred from the goods and from bringing an action against the sheriff, but the sheriff will not be protected from actions which the claim- ant may bring.** Where a sheriff without special instructions seized under two writs, and a claimant appearing, the sheriff applied for an interpleader, when one creditor took an issue with the claimant while the other disavowed the seizure, an order was made on the first writ directing un issue and protect- mg the sheriff, and on the second his application was dis- missed with protection to the second creditor only. Under these circumstances the claimant sued the sheriff for wrong- fully seizing under the second writ, and obtained a verdict." Execution lUyed untU inue determined.— When a sheriff withdraws upon the claimant paying money into court, or giving security, the execution is stayed, and the execution creditor cannot have a return, or issue a second or alias fi. fa. "Brackenbury v. Laurie (1834), 3 Dowl. 180. Commonwealth V. Megee (1861), 4 Phila. Pa. 258. BellehouHe v Gunn (1861), 20 Upper Canada Q. B. B59 -May v. How^and (1858). 19 Upper Canada Q. B. 86 ".Tohnson v. Macdonald (1863). 23 Upper Canada Q. B. 183. THE INJUNCTION. 201 until the issue has been determined. Until such time the sheriflf cannot tell whether he should make r return or proceed to levy on other goods, or if there are no such goods make a return of nulla bona.'"' ' In Scotland it has been held, that the mere existence of an action of multiplepoinding, in which an execution credi- with. The process doe« not stop the race of diligence or execution, and it has been said that it would be a strange result if ,t did, considering that multiplepoinding often de- pends m the Scotch courts for a great number of years, twenty and thirty and more being known »» Sheriff', porition when relief refiued.-If the application of a sheriff be refused, it is always open to the court to give hir>. further time to return the fi. fa. or the process, which leaves him to perform the duty cast upon him by law as best he can, but he will be alio- ed a reasonable time to make his return after his application is refused " Time for objecting to relief .-The time for disputing the applicants right to the protection of the court, is when he first applies for the order to interplead. If a claimant has appeared m court upon the application, it is too late for hun afterwards to impugn the applicant's right to reUef when the money has been lodged in court, or after a rule' lor an interpleader has been made absolute."' When protection may be Ict.-A person who has ob- tained an interpleader order, must follow its terms im- plicitly, or he may lose his protection. Thus, where pend- ing the trial of an issue, a sheriff took an indemnity from W- Km* li'X. Div. 49: Bnrn8 v. Tonw (1872). Phila Pn l:»3^ "" ""'^ ''"*='*""" ^'''"^«' ^- P"»»'*r (1842). 2 bowl. 'sm'lfr''"^- B"*)!^^" '1^82). Ct. of Session » K O87 V.'. IZl "' HerfordKhire (1830). .-, Dowl. 144; 2 H. & (1898). M Poo Rep: ?(» Si! *'"" *^™'«-"«'« SnvingH Union v. I^„« 202 THE LAW OF INTERPLEADER. the execution creditor and selling the goods paid the pro- ceeds to the creditor, the claimant having succeeded ob- tained an attachment against the sheriff for selling in viola- tion of the interpleader order, obtain<.ii at his own instance and for his own protection.'" If a sheriff improperly with- hold goods, after an interpleader issue has been decided in the claimant's favour, he will give a new cause of action against himself.** Order without jnriidiotion.— Officers of the court are not protected, in respect of process executed under an inter- pleader order made without jurisdiction, though good on its face, if such order has been obtained on their own ap- plication.*' Frooednre when iheriff disobeyi order.— If a sheriff dis- obeys an interplea«ler order, the proper way to proceed against him, is by way of motion for a writ of attachment, for on such a proceeding the court can regulate the conduct of its officer. Where a sheriff allowed the landlord to take the goods pending the trial of an interpleader issue, and the latter sold them and had nothing left after satisfying the rent and taxes and expenses of sale, the creditor, having succeeded in the issue, obtained an attachment against the sheriff, because there was no claim for rent which he was justified in acknowledging.** But where the debtor was adjudicated a bankrupt, after an interpleader order had been made, and upon the messenger entering the, sheriff withdrew leaving him in possession, the court refused an attachment against the sheriff, at the suit of the execution creditor for contempt in not proceeding to a sale pursuant to the order.** If any person complains of the sheriff's conduct under an interpleader order, another course for such person is to move for directions under the interpleader order, to regulate the sheriff, who is acting for the court, and not to " Henderson v. Wilde (1849). 5 Upper Canada Q. B. 585. •• McCoUum V. Kerr (1882), 8 Upper Canada L. J. O. 8. 71. "Speem y. Dajrgere (1885). 1 C. & E. 508. "Maclean r. Anthonj- (1884), C Ont. 330. " Collins V. Cliff (18(J3), 8 L. T. N. S. 466. T IE INJUNCTION. 203 commence an action. ThuB. where, under an interpleader order, a sheriff was to remain in possession of a stock of goods in a store, and to continue the business uu^il the claimant should give security, or pay the amornt of the execution into court, the claimant in the meantin " to pay the sheriflf's possession money weekly, and after being in possession for about a week, the sheriff offered the goods for sale, but they remained unsold for lack of bidders, the claimant, who was also landlord of the premises, then brought an action against the sheriff for rent from the time the goods were offered, and for damages, the action was dismissed, because the claimant should have moved in the interpleader proceedings.'* A sheriff having improperly delivered goods to a' claim- ant, and the execution creditor finding it useless to proceed with the issue, moved to rescind the interpleader order, it was held that relief could be obtained for the action of the sheriff without rescinding the order. The order protects the flheriff in respect of his acts prior to its being made, but not for acts in contravention of its terras, or in breach of duty under it. If a sheriff has improperly committed an act, from which the execution creditor has suffered dam- age, the latter should have his remedy, but the sheriff ought not on that account, to lose the protection which the order gives him in respect of his prior acts. If the order were rescinded he would be exposed to the risk of actions by the claimant, as well as by the execution creditor.'* If order rewinded without notice to iherilT.— \Vhere an interpleader order provided that no action should be brought against the sheriff, and was subsequently rescinded owing to the default of the execution creditor in failing to return the issue, it was held, that the claimant liad no cause of action against the sheriff for the original seizure.*' The sheriff had sold under the order, as he was bound to do, and r^rZ^,^^ J- ^••»?«t™nK- Ont.. Row. J., 21 Dec., 1883, un- reported; Butler V. Lloyd (1849>. 1 Ir. .Tnr. O, H. 37 Howe V. Martin (1800). Man. 015. -Martin v. Tritton (1884), 1 C. & E 220 104 THE LAW OF INTERPLEADER. liB' ' . : _il:i>- imsawii:. if he had not done bo, would have rendered himself liable to an attachment. An interpleader order having been set aside at the in- stance of an execution creditor, the sheriff delivered the goods to the claimant. The creditor then sued the sheriff, but his action failed because he did not show that the goods' belonged to the debtor, and the order having been set aside the sheriff was not bound by it.** ^ When iheriir ordered to withdmw.— When, upon a sher- iff's application an order is made for him to withdraw he will, if his conduct has been proper, receive his usual pro- tection.*' Perwmal actions ngnhut rtakeholder. — The injunction which an interpleader order affords, protects an ordinary stakeholder from all actions which have been, ot may be, commenced to recover the property in dispute, but leaves the claimants at liberty to prosecute any personal actions, which they think they can maintain against the person interpleading, for special damages.*' If order containi no pr^eoting elanse.— If a pe.son seek- ing relief is not protected by an interpleader order, direct- ing an issue between the claimants, although obtained at his own instance, he is still liable to an action, even by the unsuccessful claimant, but only as to matters apart from the title of the subject matter, such as damages for breach of contract.** If, after an order without protection, the unsuccessful claimant commence an action for damages for conversion, the stakeholder is not entitled, before appear- ing, to have the action against him stayed, as being improper and an abuse of the process of the court.*' ActioM before foreign tribimali.— It has already been pointed out, that a foreigner residing without the jurisdic- tion may be a claimant in interpleader proceedings, and the «Dafoe V. Ruttan (IStiO), 19 Upper Canada Q. B. 334. « Stem V. Tegner (1898), 1 Q. B. 37. " For the law on this snbject gee Chapter VI rrnnJ^^ ""• P^"'^': Ont- Ct- o' App.. 13th Nov.. 1894. not rrported; st* also Aylwm v. Evan* (1882). 52 L. J. Chy 106 "Bom v. Edwards (1883), 15 Ont. Pr 1.50 THE mjUNcnoN. 205 decisions show that the courts will sometimes allow service of a summons, petition or notice upon the foreigner al)road although they wiU have no authority to enforce any order which may be made, except in so far as it may enjoin the foreigner from afterwards commencing an action within the jurisdiction against the stakeholder.*" The case of one claimant suing the stakeholder at home and a foreign claimant suing him abroad for the same sub- ject matter, is not analogous to the case of the same plain- tiff suing in two different countries for the same property *' The home court cannot act against the foreign tribunal, and hence no interpleader can Im? effectually decreed })e- cause it can not enjoin the foreign action, if an action is proceeding, nor act against the person of the foreign claim- ant, because he is not within the jurisdiction, to any greater extent than above mentioned." It has accordingly been held in the United States, that interpleader will not be awarded if the absent claimant is suing in another State, at the time the stakeholder seeks relief. There is no jurisdiction to afford relief by way of interpleader when the court applied to has no power to stay actions commenced by the claimants in other courts " And pajTnent into tho home court will not protect the stake- ment^L ^*^'"^ *° P*y """^ *«*•" '^^^ » foreign judg- Beoent view in Ontario—Another view has been taken m Ontario, and interpleader has been allowed, where one of the claimants was suing in a foreign jurisdiction. The stakeholder was in danger of being sued in Ontario, although the pending action was abroad, because it was said, that it «s!! ^*'^*""y V. Lewis (1882). 22 Chy. Dlr. .337. A. (1900). 19 Ont. Pr SI ' ^®^= "''"^*' ''• ®'""' "' »• ^• P.."4S!*°* ^- ^'"'^ ^^^>' ''** ^«''- <»1: Walsh V. Rhall. Kulp. "Barry v. Banitable (1873). 14 Abb. Pr. N. C. N. Y. y. 383. S06 THE LAW OF INTERPLEADEB. KV van only by subsequent proceedings in Ontario that a judg- ment obtained elsewhere could probably be enforced. Pro- ceedings at home can reasonably be anticipated, and it is but right that a stakeholder should have an opportuhity of preventing them, and so if possible avoid the trouble and expense of defending actions in foreign jurisdictions, by inducing the rival claimants to litigate their claims in one proceeding in the applicant's home courts. It must be borne in mind that foreign claimants cannot be compelled to appear, or be prevented from pursuing any remedy which may be open to them, in the courts abroad. If the stake- holder have property abroad exigible in execution under a judgment in the foreign court, he may find himself in an unfortunate position if he takes an interpleader at home. It may be, however, that the foreign courts will pravent any real injustice from being done in such a case.** Other easM. — If both claimants reside in the game juris- diction, and one of them commences his action in a foreig:i court, the home court may award an interpleader on the principle that it can then act against the person of the claimant suinp abroad, and thus compel him to stay his for- eign action >> it would be subject to the nile, so far as applicable, thuv in double actions by the same plaintiff, it is not vexatious to bring the same action in two countries when there are substantial reasons of benefit to the plain- tiff from so doing.'* But, as has been pointed out, interpleader has been awarded in many cases where the claimant is in another State or country and has not instituted an action; and it will be found as a general rule, that a foreigner or absent claimant asserts his claim through some attor ley or agent within the jurisdiction, and submits to the jurisdiction, and that the question of his being a foreigner does not arise, until he is directed to give security for costs if such direc- tion is proper.'* " Ke Confederation Life Assn. (1000), 19 0,it. Pr. 16, 89. •• McHenry v. Lewis {18g^2>, 22 Chy. Div. 397; PeruTian Gnano Co. V. Bockwoldt a883). 23 Chy. Dlv. 225; Schuyler v. Pellssler (1838). 3 Edw. Chy. N*. Y. 101. " See ease* cittd under Security for Coata. THE INJUNCTIOX. 207 When the foreign claimant* appear in an interpleader suit, the proceedings must Ik? disposed of according to the law of the State or country in which they are instituted " InterplewUnf in two ooantriar-Where a stakeholder had taken in Scotland proceedings in the nature of inter- pleader, called there an action of multiplepoinding, and be- fore a decision was given one of the claimants sued the stakeholder in England, the English court held, that the stakeholder, a Life Assurance Society, having admitted that they had no interest in the money claimed, must pay it into court without being indemnified by the plaintiffs from hav- mg to pay it into court in Scotland, although the practice of the Scotch courts might be t(. require this to be done notwithstanding the payment of the same into the '^nelish court.*' * United States Conrts—So, when a stakeholder files a bill of interpleader in a Circuit Court of the United States, that court has no power to restrain or interfere with a suit pro- secuted by one of the claimants and pending in a State Court, by enjoining the further prosecution of such suit. If however the second claimant is suing the stakeholder in the Circuit Court, this latter court, whil-^ unable to decree an interpleader, will stay all proceedings in its own court until the suit in the State Court can be determined." In the same way, when an interpleader bill is brought in a State Court, that court cannot enjoin an action brought by one of the claimants in the Circuit Court of the United States, because it is against public policy, and the comity due from the courts of one State to those of the United States, to enjoin the prosecution of suits previously com- menced and pending before them."^ Aotiona between claimanti.— When there is a claimant at home and a claimant abroad, and the formfir receives ;; Whitridge V. Barry (1874). 42 Md. 140. N 8 Wl . IL. «."'^'' Eqnitable Life Aw. Society (1872). 20 L. T. Cironit 14 *"" ^"''^ ''■ ^''*'*«'» THE INJUSCnoN. S09 with « third party claiming the debt, so that the attachment proceedings may be gtaj'ed.** Stoy obtained in inferior oonrt—A stay of proceedinpi obtained m interpleader, in a court oi inferior jurisdiction, cannot ordinarily operate to stay procedings in a superior court A sheriff, having obtained an interpleader order in a county court in British Columbia, and the claimant on the trial of the issue having failed t > establish his title, nevertheless sued the sheriff for damages for seizing the goods for an amount which could only be recovered in a superior court It was held, on appeal, by the Supreme Court of Canada, that the county court judgment being a decision of an inferior court, could not operate in respect of a cause of action in the superior court, and beyond the jurisdiction of the county court to entertain, and therefore the sheriff could not succeed by pleading the proceedings m the county court, unless he specially pleaded by wav of estoppel, showing all the facts necessary to establish ' the estoppel." 8»it in Eqnity tad action at Uw.-When one defendant m a bill of interpleader is suing the plaintiff in equity, and the other is suing him at law, a court of chancery will al- ways grant an injunction to restrain the suit in equity a» well as the action ai law." Under the Connecticut statute, the court in exercising its chancery powers takes entire jur- ij^iiction of the matter pending at law. The assumption of Ihe jurisdiction in equity operates to suspend the proceed- ings in the court of law.** . »rooMdingi not •Uyed.-There are a number of instances m which the courts will not protect a person seeking relief by way of interpleader from pending or threatened actions, oecause of acts of omission or commission on the part of such applicant. Thus, in many cases an interpleader and c.;"?rr. Sir.' 'cr*;? r^r^ ^^^.s;*—" - Darrow r. Adams (1W4), 41 donn. B26 14 210 THE LAW OF INTEBPLXADEB. the accompanying injunction will be refused, when it ap- pears that the party seeking relief has neglected to come promptly to the court as soon as claims are made, has by his actions caused his own difficulty, has colluded with one of the claimants, claims an interest in the subject matter, has some interest therein, does not stand indifferent between the claimants, asserts ri^ts against the claimants or some or one of them, or, when he has already exercised a discre- tion in the matter; and in many other instances, where the particular circumstances do not warrant an interpleader, no stay of proceedings can be had.** Where a debtor, or trustee, has been sued, the proper course, under the English practice, is to apply for relief in the action under the interpleader Bules, and not under the section of the Judicature Act, because, if an order be made under the section, the judge making the order has no power to stay the proceedings in the action.** If applieation not proMonted.— A person who comes to the court for relief by interpleader, should have his appli- cation disposed of promptly, or a pending action may not be stayed. Thus, where pending a sheriff's application the claimant commenced an action to which the sheriff pleaded, instead of pressing on his application, at the trial the sheriff was not allowed to set up the interpleader order, which in the meantime had been made.^* AotioB mut b« referred to in order.— To ensure complete protection, a person seeking interpleader should notify all claimants, and have all pending actions properly disposed of by the interpleader order or judgment. If a person interpleads after an action has been brought against him, and fails to notify the claimant who is suing, the latter's action will not be stayed." Where a sheriff's interpleader order provided that no action should be brought against the **8eeChiiptorII. •• Beading t. The School Board (1886), 16 Q. B. D. 68fl: M'Blheran ▼ London (1886), 11 Ont Pr. 181: 3(5 & 37 Vict Imp. c. «6, B. 25, ■.•■. 6; B. 8. Ont 1897, c. 51, a. 58, a.-a. 6. • <*Boblln V. Moodie (1856). 2 Ont Pr. 216. " Burleigh t. England (1888), 1 Am. lOa THB INJUNCTION. 211 sheriff, and did not refer specifically to an action which was actually pending, and the cUimant having brought his action on for trial, it was dismissed, but no costs were given the sheriff, because he might have had the whole matter disposed of on the interpleader.^* *u ^^\^^ "• "*"• wrtrmined by injiincti«i.-Since 1873, the Enghah Judicature Act provides that no cause or pro- ceedrng at any time pending in the High Court of Justice, or before the Court of Appeal, snail be restrained by in- junction, but every matter of equity, on which an injunc tion against the prosecution of any such cause or proceed- mg might previously have been obtained, may be relied on by way of defence; provided that nothing in the act con- tamed shall disable the court from directing a stay of pro- ceedings in any cause or matter pending before it, if it shall think fit, and any person who might previously have been entitled to apply to the court to restrain the pr ■ .ecution, shall still be at liberty to apply by motion in a summary way for a stay of proceedings in such cause or matter, either generaUy or so far as may be necessary for the purposes of justice, and the court shall thereupon make such order as shall be just." The same provision is also in force in On- tano,»« and in Manitoba." This provision is reaUy supplemental to the jurisdiction m the interpleader rules, which aUow the court to stay proceedings, and does not interfere with the inherent power of the courts to restrain a claimant from instituting pro- ceedings," nor does it prervent an injunction being granted to stay proceedings in an inferior court." The provision just mentioned, prevents interpleader pro- ceedings from being restrained by injunction. Where an interpleader order had been made at the instance of a sher- iff, and the claimant having failed to give security, the "Aylwta V. Bvan. (1882), B2 L. J. Chy. 105. •Bnr. Jnd. ActJ^878. •. 24. ■.* 6. ^n. B. Out. (1897). e. 81. mc. B7 (8). "Hedlfy T. Bate! 0880). 18 Chy. DIt. 49« w :-;'l 212 THE LAW OF IKTERPUEADEB. M§ sherifF was proceeding to sell under the order, when !.ie ckimant commenced an action and obtained aii injunction restraining the sheriff from selling, or remaining in pos- session, but on appeal the injunction was disohai^ed a» having been improperly granted." Vo injunction until fluid in ooiurt. — An injunction is generally an order, but formerly was always a writ issued under an order. By the common order for an injunction in an interpleader suit, the writ was directed to issue upon the fund in question being brought into court, and now an interpleader order must be conditioned that the injunc- tion granted shall become operative only upon the money being paid into court," or security given for its ultimate payment." If an order does not make the bringing of the fund into court, a condition precedent to the issuing of the injunction, the order will be discharged.*^ A person seeking interpleader will only be discharged as to the amount paid am m. at If the subject matter is not a debt or money, and can- not be paid into court, the injunction will generally operate upon the applicant obeying the order of the coart, with regard to its disposition. In sheriff's interpleader, the injunction is not always dependent upon a prior payment or disposition of the pro- perty, as frequently after proceedings are stayed, the sheriff holds the goods until the time within which the claimant may give security has elapsed, and then he sells and pays into court. It depends upon his willingness to obey the directions of the court. "Wright v, Redgrave (18TO), 11 Chy. Div. 24. «J1*'**^*"''» ^- »«•>«'»■ (1887), 2M.A0. 681| Panli v. VonMelle (1887), 8 Sim. 827; Shaw v. Cheater (ISM), 2 Bd. Chy. N. Y. 406; Bender v. 4Snierwood (1886), IB How. Pr. N. Y. 2S8; Gardiner v. Bmerw>n (1886), 91 Me. 686; Gnllen v. Dawaon (1877), 24 Minn. 66: WiUiama v, Wallier (1846), 2 Rich. Bq. 291 8. Ca.; Blue v. Watson (1882), 69 Miaa. 619; Freyhan v. Berry (1897). 49 La Ann. 80.5: Bliaa V. French (1898), 76 N. W. Rep. 78 Mich. For early canes before the practice became aettled, aee Surrey ▼. Waltham (1785), 2 Anatr. 681 n; Dungey t. Angove (1789), S Bro. 0. G. 86. . "Bigga V. Konna (1838), 7 Dana Ky. 406. " Sipveking v. Behrena a887). 2 M. ft C. 681. "Bdlingham Bay Boom Co. v. Brlabola a886). 14 Waah. 173. THB INJUNCTION. 2ia It has been held in Ireland, that a defendant in an inter- pleader snit cannot require the plaintiff to bring the pro- perty into court, before the latter has appUed for an in- junction staying proceedings." A stakeholder, the defendant in an action, is entitled to relief, though an appUcation by the plaintiff to restrain the payment of the fund to a third party during the pendency of the action was denied, because such a denial is not con- clofliTe of the validity of the plaintiff's claim.»« Slittiri aetion to reoorer goods.— A sheriff has some- times been obliged to take proceeding., against a claimant to recover possession of the goods, or their proceeds, in question upon an interpleader. Thus, where a sheriff levied upon goods in the possession of certain claimants who were agents for sale, but the claimants went on and completed the sale which they had advertised. The claimants failed to appear upon the interpleader proceedings instituted by the sheriff, and were barred. They then attempted to have the order rescinded, but failed, and an appeal was ako dis- missed. The sheriff then sued them for u.e proceeds. It was held that the claimants could not again plead the title npon which they claimed from the sheriff in the beginning. They had been forever barred from prosecuting their chum against the sheriff. It was said, that the intention of the Interpleader Act was to prevent further Utigation, and it must be assumed that a judge making an interpleader order 18 nght." And where a sheriff on going to seize, was re- swted by an auctioneer, who claimed iL-? goods under a bill of sale, and upon the sheriff taking out au interpleader sum- mons, the auctioneer disregarded it, and sold and removed he goods, it was held a contempt of court both at common taw and under the Interpleader Act, and an order to attach the auctioneer was made absolute." -OHndMnin t. O'Keefe (laa*). 1 Hog. 118. WUIiam. V RIchardMo (1877), 86 L. T. N. S. 505. Cooper T. Aaprey (1888). 8 B. * S. 882 tl4 THE Li^W OF INTERPLBADEB. '! Airti«ii on iatwplMder bond—When a claimant has given Becunty for the forthcoming of the goods, or the payment of their value, and the execution creditor succeeds upon the tnal of the issue, the latter then sues the claimant and hw sureties upon the interpleader bond if the condition IS not observed." An action upon the bond will also lie, if the claimant has been non-suited for the non-appeanmc^ at the tnal of himself or his counsel, and the goods are not forthcoming.*' In answer to an action on an interpleader bond, the claimant will not bs aUowed to set up the title which he asserted on the interpleader issue, in which judg- ment was given for the execution creditor." Where an execution creditor succeeded on the issue, and the sheriflf took and sold the goods and made his return and the execution ^creditor afterwards sued the cbimant on his bond that the goods should be forthcoming, it was held that the claimant might give in evidence that the sheriff had sold and applied the proceeds.** Where the claimant in a sheriff's interpleader is de- feated on the issue, and pending an appeal, is sued upon his interpleader bond, and to avoid judgment in such action pays the claim of the execution creditor and takes an as- signment of the judgment on which the execution was issued, such payment is voluntary and cannot be recovered back on the reversal of the judgment on the issue." One who has by several and distinct interpleader bonds, to different execution creditors, in separate issues, bound himself that the same goods shall be forthcoming in each case, if the respective execution creditors succeed, is respon- sible upon each of the conditions, if each is broken. And when judgment has been obtained upon one of such bonds, the court will not stay proceedings until the determination of the other issues in respect of the same goods by the other r =,?,"' ^;,^°* 2'*™ »y- Co. (1869). 10 Upper Canada C P 408. Kenn^j t. Pattmon (1864), 22 Upper Canada OR kw: Conboy V. Doll (18M). 14 Cinada lTt. m * THK LAW OF INTCRPLIADKR. claimant can get no damages, for the sale of his goods at less than thoir real value, when the sale is under the inter- pleader order.*' A claimai\t, having succeeded and obtained hu pro- perty as well M a judgment against the execution creditor for his costs, then sued both the execution creditor and his attorney for damages and recovered a verdict in which was included the amount of costs for which he already had judg- ment. It was held on appeal, that the same damages must be recovered against both, but, that the verdict must be reduced by the amount of the costs for which he already had judgment, as that amount could not again be recovered as damages against the execution creditor." Proteotioii to ezMvtioii enditor.— The court has author- ity by an interpleader order, to restrain an action against the execution creditor in a proper case, as well as against the sheriff." A claimant, though barred by the order from bringing any action against the sheriff, may still have his action against the execution creditor, when the latter has been active in putting the sheriff in motion," or where the ex- ecution creditor has assisted the sheriff in executing the writ," or where he has directed the goods to be seized and has attended at the sale and bid,«» or where the creditor either by himself or his attorney has directed the sheriff to seize particular goods." A creditor directing an un- lawful seizure, and afterwards instructing the sheriff to nf^T^a^^' ^- <*!."^(18e2). 1 H. & C. 021; Appelby r. Withall (ISeO). 8 Upper Cwwda C. P. 897: Henry t. Mitchell (1875). 37 a'^-T^J^- ^ ^„"\^^'iJ- Mnrphy (1887). 12 Ont S. 2iJ "Power V. PlemlnK (1870), 4 Ir. R. C, L. 404. 1„„H nSSt°Vo Jf '*'*'5? (1858) 27 l. J. Ex. 148; May r. How- ffi' oL^n S m ^- ^* '^'' ''''''" "• «••* <^«^>' '* " Bellhonae v. Onnn (1861), 20 Upper Canada Q. B. 650 "Park T. Taylor (1862), l Upper Oanada C. P. 414. "Gray t. Fortune 0868), 18 Upper Canada Q. B. 253. (1867), 27 Upper Canada Q. B. 82. Tfflt INJUKCnON. 219 withdMw, wiU Btm continue liable, if the sheriff do not at once withdraw." Injunction gnnted «x p«t«.-If the plaintiff, in an interpleader guit, has already paid the fund into court or offers by his bill to do so, he wiU be aUowed to applr « parte upon supporting the aUegations ia Iw Ml by^ affi davi^ without waiting lor ikt appearance of the defen- When it ai«7 be dii«>lTed.-A defendant, upon appear- ing my, however, move to dissolve the injunction thus ob- tamed but as a general rule the court will allow the stay to contmue until the hearing." If, however, the court sees that the contmuance of the injunction in full force, may have the effect of enabling a stranger to deprive the parties to the suit of the legal rights which they had already ac- quired the injunction will be suspended so far as to allow proceedings at law to go on to judgment." A plaintiff's delay m getting in the answer of one claimant, is also a ground upon which the other may specially apply to have the in- junction staymg proceedings dissolved." How appUed for.-A defendant in equity cannot ask protection m the suit against him, he is required to file Lwiv!! ^^'P^^*^^.' " ^"^«' interpleader a7ts and codes, however, the practice is reversed. A person seeking to stay proceedings theremider must apply in the cause or Zl " ^rl!°^'.r^ f °°°* ^'^^ • "^^ ^^^^ '«' the pur- pose. It has therefore been held, that when a defendant n^l«^/°/'^';. * application for relief by interpleader, nnir^ ."" *^' "'""° *«*'»«* ^™' the court has no jurisdiction to stay proceedings in the action." -W?J^J- **'*«»»«" (1875). 87 Upper Canada Q B 217 Weveklng T, Behrem (1887). 2 M. ft C 881 -m^K ^- T?'"!f <1815). 19 V«. Jn* W2 -S.^'' ▼• CorWn (1784), 1 Cos 144. «widto» T. School Board u88e). 16 Q B D THX LAW or INTKRPLBADEB. lettou wkkk my b« ■toy«l-The only aetioiu which era he stayed, are actiona in which the penon leeking relief i« himself a party defendant, and do not indnde ait action by one claimant against the other, even though in respect of the subject matter in the possession of the person seek- ing interpleader.** It must also be remembered, that the action of a chum- ant, who has not been notified of the interpleader proceed- ing, win not be stayed ,••• and that a stakeholder wili still remain liable to the claim of any claimant who has not been brought in, as the latter cannot be bound by the order or decree made in his absence.** Fnotiee ai to iajviietioiii.— Under the early practice in equity, the plainti^ in an interpleader suit applied at once upon filing his bill for a special injunction to stay all pro- ceedings, upon payment of the money into court, without first obtaining the' common injunction.** This injunction did not, like the common injunction, leave the plaintiff at law at liberty to demand a plea and proceed to judgment, but it stayed all proceedings.** Under the English practice, it has been held, that a stakeholder cannot draw up a rule for a stay of proceedings unless notice has first been given to the chumants.** A sheriff, however, usually obtains a stay of proceedings upon his ex parte application for an interpleader summons, but when a sheriff applies by motion, as in Ontario, it is upon notice to the other parties.** It has been said in New York State, that in an action of interpleader the plaintiff cannot move for an injunction until the defendants have put in their defence.** Co. V. Ward (1886), 11 Victorian "Anatralian M(mt de Plete B. 798. " Bnridgli T. Bncland (1888), 1 Anurid 106. •• Beysolda t. Mtnm Life Inw. Ooy. a886). 6 App. DIt. 2S4 N. : Bain ▼. Lyle (1871), 68 Pa. St. 60. "Vicary y. Wid«er (1826), 1 Sim. 15. "Warington t. Wheatotone 0821), 1 Jac. p. 200. "Smith T. Wh -'er (1886), 8 Dowl. 481. "Oat. njle llO^i. "WasWnctoo t. Lawrence (1885). 28 How. Pr. N. Y. 410. THl INJUNCnOK. SSI If the defendwit. to . bill of interple.*,, n.ve .ppered It It the practice m chancery, to «erve them with not^o of ^r r r r«? i"J"«<^tion, but it U not then nece»«,y for the pl..nt|ff to support hi. motion with w ,ffid.nt of f*ct., other than the affidavit negativing collu«on.*« *i..^ .'S'^'^' *^°"«'* *^^ defendant should allege, that the plaintiff ha. «, dealt with him a. to render it an impro- per caw for interpleader, an injunction will .till be granted un^eM the court i. «iti.fied, either that the allegation iJ true, or at lea.t, that whether it i. «, or not i. a .ubstan- tial quction to he tried." And if it should appear at the T^^ u'*/° '°i"°««»n has been improperly granted, it will then be diwolved.*' r r j e ^«^u, n »J!^T^^\^''f^^ "^"^ P"*"*^"' *^«* »' *»»« application l^u Jy * **"'«"^«°* •'^ *° "ction, the court or a judge may stay al further proceeding, in the action," that if the third party claumng appear, he may be .ubetituted a. def endant,** and If he doe. not appear, or having appeared neglect, or refuw. to comply with any order made after he appear., he may be forever barred." The.e rule, are foundS oi^ the Interpkader Act of 1831. The «une provision, are in r 'fu^**"y* '"^ '^ *•*« °th" tJanadian Province, whew the Engh.h Judicature Act ha. been adopted. Ihe Court, however exercise a wider jurisdiction in staymg and restraining present and pro.pective proceedings, than the wording of these rules would .eem to allow Ample authority for a wider diiK-retion, in .uch matter.. « to be found in the imnibus rule which allow, the court m mterpleader proceeding, to do whatever may be just J^urte "'°°*^^^' '°"°''^°« *^^ e.tablished practice of the (18MW L^J V' f?K'^^ <^«27). 1 Sim. 885: Pry r. W.tWD "Jew T. Wood (1841). Cr. ft Ph' 185- 3 R^.r ma •S3Kv'i.f"S.T»- '=■■ * •^••^.'^ °"- **Bal« 7. "Bute 10. •Ont Bales llOfi. .od 1108. 1Cd«. Ord. LVII.. r. 16; Ont. Bole 1122. 222 THE LAW or IMTIRPUUDBR. In the IJmted States, the Tarioiu interpleader codes provide, that a third party claiming may he suheti^ted in the defendant's place, and that the defendant may be dis- charged from liability to either party upon paying into court the amount of the debt, or upon delivering the pos- session of the property, or its value, to such person as the court directs.** The applicant cannot have his order for relief, until both claimants have had an opportunity of an- swering his motion/* The fact that a stakeholder is dis- charged from liability to either claimant, means by implifi- cation that present proceedings are stayed and future ones enjoined. "Bee Appendix.* •WaBhington t. Lawrence (186S). 28 How. Pr. N. T. 485. CHAPTER IX. DISPOSITION OF SUBJECT MATTBB. Wipodtion pending trinl.«it is always P^cewary to make some interim disposition of the property question unt.1 the contest between the claimants^ decidT If a fund or debt be in question, tho money can readily be paid mto court, but if the subject matter be property other C money. ,t must be sold and the proceedsVil into eourtrr i may be stored, or delivered to one of the claimante uion hM pving security. Thus, it has been said of sheriff's inter- it rifr "" ? '°"'*l°' "^""^y «^"^°' ^ ^^''^'^It ^f which Ihe shenff sells, or he may remain in possession of the fL Jk*^ •'"not simply withdraw, for the goods may be wolldttit.^' '' ^"" "^ *'* ^"^'' °' ^«-«- Wed to pay the whole amount into court, suspending tLi""**? ?«"'»<*•«*=. his right to which wUl depend upon whether the execution creditor succeeds or not.« ov.,^ T^}''' •oM.-The court has always jurisdiction 21 tln^^^""' ""'"^ '"^"^'•* ^^'''''' to ^«Po«« 0' it in n!!r rr^'f" T'**'"*^ *" '" **»« Circumstances shall ap- pear to be just and reasonable.* There is jurisdiction there- fore, to order, unless a claimant pay the value of the goods * X^''* *• 5**'««'^» 0879). 11 Chy. D. p. 83 14 C^'Ip^': m^"^ ^'*^'>' ' ^'»'"- ^«' T«™« T. Crorier (1891). ""»-iip • 224 THE LAW OF INTERPLEADEB. into court or give security for them, that they be sold;* and it does not matter, that the claimant claims the property absolutely, and not by way of security only.* But the court will not order a sale before the claimant is serred," and the usual practice will be varied, if the claimant can show special grounds, rendering it unjust to direct a sale if security be not given.* Capacity in whioh iherilf leims. — ^The execution creditor is never to be looked upon as in possession of the goods seized. The actual possession is that of the sheriff, who is not a mere bailiff for the execution creditor, but acts in obedience to the judgment of the court, and as its officer. The goods taken p execution are therefore not in the pos- session of any party, but of the law.* Claim under bill of lale. — The English and Ontario rules specially provide, that when a claimant alleges title to the goods seized, under a bill of sale or otherwise, by way of security for a debt, the court may order a sale of the whole or a part, and may direct the application of the proceeds in such manner and upon such terms as may be just.* But a sheriff is not compelled to interplead, so that a creditor may have the benefit of this rule; he may, if he is 8atisfie' 1 •'"• J' O"*- Ct. of Appeal, not DisroumoN OF subject matter. 227 expense. It was provided, that if the claimant succeeded ZtZT "'""" i" t ^"^ ^' *^* *'«'"ti«'» "««"or, and that the receiver should give security." Where a claimant was m possession of goods at the time of seizure, asTrl T"' )\r' ""^"'^^ *** ^"''^ *^^«°» ««bject to the further order of the court" runner /PP"<«nt to retain poMwrion—Sometimes the applicant IS directed to continue in possession pending the trialT ado^fd" *'""• ^'" *=°""« ^« «^«°«i^«' »-d is seldom nrnr^V"^' '"'"'^ ''"'" manufactured materials, the Lill !i,^°'°.^ T'"' * ^^'•^*'*^°'^ ^" the interpleader th^ L^ .• ?'"^ '^^'^^'^ ''*'°«""« ^° Po««««^ion until !inw ru**°" "' ^'^^ "«"^' ^^« ^Pl^«W against the ZaTZ r *^n f ''""°° "^'^"''^ t^^*** tJ^^ sheriff should be directed to sell the goods, if the claimant did not pay into court or give security." ^^ Order in Aeriff'. cMei.-In sheriff's cases, the usual direction is, that the sheriff shall withdraw, upo'n th: cE- ^IL^ fw." '""'* ^^' *PP"'*^^ ^^''^^ ^^ the goods to- gether w.th the expenses of appraisement, or the amount of the execution, whichever is least; or upon his givine secunty for the same least amount, and up'^n paying h! ,0? T^TT""" "^""^y ''""^ *he return of the applica- tion. If the claimant fail to take advantage of this provi- sion, within the time limited, the sheriff is directed to sell, and pays the proceed, into court, less the expenses of sale and his j)osse8sion money from the date of the order " The sheriff cannot be called upon to part with the goods, with- A^:^' 'f :'"t " '"^ ^^™ '°' P«-«-° expenses" car^lnl T! 'u^ '^"^ «'««'-The applicant should be careful not to withdraw from possession, until the proper I-MttoD V. Horton (1841). 8 Beav. 4«4. r .' r 1 I ■ ''ii im. THE LAW OF INTKBPLEADEB. time. Where a 8heri£F temporarily withdrew, after an order had been made, it was held that the goods were no longer in etutodia Itgia, and a landlord might distrain, aidiough he knew that interpleader proceedings were pending.** After an order had been made directing an issue, a sher- iff withdrew from possession, because the execution creditor failed to famish the rent claimed by the debtor's landlord. The court, then allowed t"he sheriff an order providing for his costs, and discharged the order for the trial of an issue." Fart of fnnd not in diipnte. — ^When a fund has been paid into court, and it appears that one claimant claims the whole, and the other one half of it, it is proper to order payment out of one half to the claimant claimipg the whole, notwithstanding t^at the claimant to one-half objects, al- leging that the other claimant owes him in other mat- ters. The object of the interpleader is to determine the rights of the claimants to the fund which was in the appli- cant's hands, and not for the purpose of having adjusted other matters of account and dealings between the claim- ants.** Sheriff's duty under order.— After an order has been made, the sheriff should always enquire whether the claim- ant proposes to give security by bond, or to pay into court. If he elects to do either, the sheriff should then ascertain whether the claimant desires the goods appraised. Where a sheriff, upon being asked to have the goods appraised, failed to do so, and then sold them because security was not given within the time limited, it was held in an action against him that, having by his neglect prevented the claim- ant from complying with the order, he was estopped from saying that the claimant's non-compliance justified the sale; and, that the effect of the sheriff's neglect was either to deprive him of his protection, or to operate as a waiver of the time limited for giving security." "Cropper t. Warner 0888). 1 0. ft B. 182. ■ " T^WMHi ▼. Carter. W. N. (18M). 6. "Zllhman r. Zilhman (1802). 28 Atl. Rep. 1098; 75 Md. 872; In re Mersey Dock Board (1868). 11 W. R. 288. •'Black T. Seynoid* (1878). 48 U. C. Q. B. 88& DISPOSITION OF SUBJECT MATTER. fSg ;« Ht"^ the sheriff's daty, before proceeding to sell to «certam whether the payment has Ln mad! by ^ ch^ant mto court, or whether in the alternative he ^ then withdraw from possession.** .nop^n!!"^,"' '^' •*^-« « ot considerable import- the-hpr.?^- ?uv^f ''"'** •" ^°«'«°'*' ^O'^^-^r, that the sheriff ,8 not obhged to furnish a claimant with par " culars of the goods he has seized, because it would C great burden on him, and put him in great difficuUies iJ he were obhged to describe each articlf he hassetd in :£an: "*"'' "' °"^ "'^^ "'^^^^ -- ^«-ard - a me\Z!^r\t t't'' ""' ''^ ^''^™«°* « «"o-ed to t^^ Cr^' '^'"* "*"'* °' ''^"^^ prepare an inven- toiy for the purposes of appraisement, and in Pennsylval he IS reqmred to file this without being notified to doT and without consulting the parties « ^° ""' aniilentorrt'' * "T"''"* ^''''''' '«' « «»»-'« to -ake an mrentory at an early stage, so that he may know whether ClaiBMnt may take goods on ffiTin* iiiATiinf. r^ *x ■m to take the good, spon giving security by bond US'"';' '• ^«ol(U (1878), « p. o a B 388 1125.°°" '■ =""■"•• B«* (laas). 11 oil. Pr. 191, OM. B.I. S80 THE LAW OF INTERPLEADER. ■1 1 .-pi 'v. L 4 with sureties, or by a payment into court." In ^criflfs cases there is usually no objection to this course, as the execution creditor does not want the goods, but their value in money. In a stakeholder's case, if the two claimants both desire possession, the court can direct the subject matter to be stored. If the claimant is a receiver, it is not necessary that he, an officer of the court, who has no personal interest in the matter, should bring money into court. He will be directed to hold the goods subject to further order, which gives full protection to the execution creditor.'* Bvle in Pennsylvuiia. — In Pennsylvania a more reason- able practice has Ibng prevailed. If a claimant in sheriff's interpleader allege that he does not* derive title from or through the execution debtor, and is in exclusive possession, the court will not require security from him other than his own bond,** but this will only be allowed in a clear case." The court will permit the claimant to be cross-examined, and will also permit counter affidavit« to be filed,** but the claimant is not obliged to submit to examination before the time allowed for filing his bond.*^ A bond without security has accordingly been allowed, where the claimant gave the debtor the goods as his agent to sell on commission,** where the goods were purchased by the claimant at a sheriff's sale,** where they were pur- chased by him from the debtor's assignee for creditors,** and where the claimant was a municipal corporation.** When «_ ".^.S^''^ I: I'"d»»«°» (1843), 6 M. & Q. 1T7: Goodlock v. Oousina (1887), 1 Q. B. 688. "PurkiBs V. Holland (1887), 31 Sol. J. 702. ^ "Haywood v. Aahman (1871). 8 Phlla. Pa. 23.'5: B«cker v. Miller (1874), 1 W. N. C. Pa. 83; Hartman v. Schofleld (1874). I W. N. C. Pa. 164; Pa. Lawf of 1897, No. 80, a. 6; Lanadorf v. Bach (1874), 1 W. N. C. Pa. 147; Dallet v. Bond (1875), 1 W. X. C. Pa. 368: Baechley v. Walker, 1 Leg. Rec. Pa. 829. "Bailey v. Yelimeier (1877), 6 W. N. Ca. Pa, 271. "Clymer t. Shaw. 11 C. C. Pa. 862. ' " Stokea ▼. McKinney, 34 W. N. C. P*i. 128. "Panlkner t. Voiicht, 1 T. * H. Pr. Pa. 005; I.*ndenberger v. Landenbemrer (1883), 40 L. I. Pa. 100. "Bank ▼. Sharp (1874), 1 W. N. 0. Pa. 0, " Smith T. Stoddart (1879), 8 W. N. C. Pa. 800. " City T. Hitner (1879), 9 W. N. 0. Pa. 641. DISPOSITION or SUBJECT MATTER. £81 a chunuint has been aUowed to give his own bond, his ad- ministrator after his decease, will not be required to give In Pennsylvania, an assignee for creditors must give a bond with security,** so must a firm claiming goods seized under an execution against one of the partners," as weU as a non-resident claimant," and a foreign corporation." When a claimant is a married woman her husband's bond camiot be received," but where she claims as administratrix t 1!T" ?u r^^ ^" ^^^'"^ ^'"»'"»^ ^ be accepted as surety on the bond;« and if the surety sign her bond, it M not necessary that she or her husband sign it " But, she will be permitted to file her own bond without 8ec«nty, where she makes affidavit, that she is the sole and ab oluto owner of the property levied on, and that she has not denved her title from or through her husband, and •hows affirmatively her manner of acquiring title." A mar- ried woman will be permitted to give her own bond when she IS a feme sole trader." A husband may sometimes give his own bond, when he claims goods levied on under an execution against his wife." A married woman is not a proper surety to a ckimant's bond." "DoBne V. Spanogle (1881), 12 W. N O P. M ' -Aaderwn v. Tyndale (1874). 1 w N r P. i^' -Vent V. Pashley (1879). 9 W NO P. ^ ^ Brnenon v. GratUn (1876), 4 W. N. O P. B74 "Jacob. V. Well^ 1 T.* H. ^ pL one "^ ;Whlte.Ide.T. Vicker.(W4).lbL^I P. 16 iim^it'o'-^a't ^''^'' "" ^^•"- «^ «"B-k. V. Hoffn.an I-. I. Pt. 70; Giibau ; m!.i.iS;.,^;o^?; ^SS: Cherry v. Nolan. 47 Settle. 12 O. C Pa 6«5- SS'li.^- V* ^' ^'^i-on v. C. Piu 824; Sinclair v^'ey^'^JS?^w 2T i^^^^' ^ W. N. V. Stanffer. 11 Lane. Pa ^ ^^^^' ^^ ^- N- O. Pa. 181; Souder. Hln;^'£V*4^w"rV'l7V7a^- N- ""• P-- 271; Contra Nice v. before ».'^'e;,'^:;^ren^S %?^n S'JI^nt.'^" "" .' ^^'I?" to property which they now SoJ. complete riglita THX LAW or INTEHPLEADEB. Ivle ia Oateiio.— The practice in Ontario, i«quire« a claimant to giye security to the satiifaction of some officer, before being allowed to take the subject matter. Nothing is said as to the form of the security, but it is usual to give it in the shape of a bond, with one or more sureties. The addition of another person, is not inherent in the meaning of the term "security." When the claimant is a public bank, the officer settling the security does not need to call for affidavits, in order to satisfy himself of its substantial condition; and, following the rule, that an absentee is not required to 4,.fe security for costs, when he is the owner of available tangible property within the jurisdiction, the bond of a bank alone should in interpleader be accepted as suffi- cient security." Form of intarplaader boad. — An interpleader bond, under the English practice, is iisually a money bond, made by one claimant in favour ol the other, with two sureties. In sheriff's interpleader it is made in favour of the execu- tion creditor, although formerly it was given to the sheriff.'* Sometimes a claimant is allowed to give a bond conditioned, that he will produce the goods to the sheriff, if he fails in the issue, and will pay such damages to the execution credi- tor as the latter shall sustain by reason of the detention of the goods.** In Pennsylvania the bond is to the commonwealth, and is conditioned that he will maintain his title, or pay the value of the goods, and is for the benefit of the execution creditor, or any one else who shall be adjudged entitled to the whole or a part.*" Amount ot bond. — The amount of a claimant's bond in sheriff cases is either in double the value of the goods, or in double the amount of the execution, whichever is •* Ontario Bank v. Merchants Bank of Halifax 0801), 1 Ont. 23S. • "Appelby t. WIthall (1860), 8 Upper Canada C. P. 897. "Aithdown v. Nash (1886), 3 Man. 87. See also Balkwell v. Beddome (1859), 18 Upper Canada Q. B. 2S2; Talcott v. Sickle- ■teel (1861), 21 Upper Canada Q. B. 4B. "Pa. P. L. No. 80 ot 1897. DISPOSITION or SUBJECT MATTER. 188 leMt." In case of a dispnte the amount will be Mttled by the Bherirs appraisement,** which wUl not, as a general role, be set aside unless fraud or misconduct is alleged on the part of the sheriff or his appraisers.*** Unfinished parts of patented machines should, in fixing the amount of the claimant's bond, he having no interest in the patent, be valued at what they are worth m th, con- stroction of similar unpatented machines.*' The claimant is only bound to give one bond, and not a bond for each execution, although the sheriff may have different executions under which several creditors may be entitled to share in the fruit of the levy if the claimant fails.** The bond given by a claimant cannot be considered or declared assets of a judgment debtor.** When bond given.— The interpleader order usually limit* a time, within which the bond is to be given by the claim- ant. In Pennsylvania, when an issue has been granted, the claimant must file his bond within twelve days after the issue has been granted,** where he neglected to give bond for a year and nine months, it was held that the claimant could not be aUowed an issue,** but the court may order the goods to be sold, failing a bond, and the proceeds will re- main in court pending the trial of the issue.** AUownnee of bond.— The bond is settled before some oflicer of the court, named in the order, in the presence of both chumants. As the applicant does not as a rule attend upon the settling, he should generally have produced to Zoto£?aSl)? Tn w"P^'^ ^l^'^'J ^- ^- C- Pa. 15: Chandler v. 2CW Prs7K?w-,if- ^•^*- 838: Shappless v. Merriman (1884), r BSinf i I?', ^l.'*^'°oI- ^^« 1 ^- C- Pa. 169; Contra Rinebart V. BodUne. 8 Kulp. Pa. 86; Pa. P. L. No. 80 of 1897. -wTrfpl^ "J^- ^ ^^'T ^*'^'- P"- P- I- ^'>- «> »' 1897. Unc. Pa 828' ' * * ®*'""f^' ^- *»"<>*••. " "Weldin y. Booth. 1 C. C. Pa. 169. Conley t. Gartner. 8 Lano. Pa. 201. •Wolf V. Wolf (1882). 1 Del. Pa. 880. "Pa. Sutnte (1897). No. 80. aec. 12. THS LAW OF INTKRPLBADKR. him some oflBcial notice that the •ecurity has been allowed. Where a sheriff withdrew upon receiving information from the claimant, that security had been given, although the claimant had been guilty of deceit in getting the sureties approved, the sheriff was held justified.'^ Titte to foods wImb bond giTOB.— A claimant upon giving a forthcoming bond, acquires a right of possession, which includes a right of removal, until the issue is determined against him, when his right of possession ceases. His cus- tody is substituted for that of the sheriff. The property is not withdrawn from the custody of the law, but is still sub- ject to the lien of the execution. In the hands of the claim- ant, under the bon^ for its delivery to the sheriff, the pro- perty is as free from the reach of other processes, as it would have been in the hands of the sheriff.** The goods cannot be levied upon and sold under a sub- sequent execution, because, if taken from the claimant, he would be deprived of the power to deliver them in con- formity with the condition of his bond;** nor can the ex- ecution creditor issue another writ and levy upon the same stock of goods." The goods in the claimant's possession may still be destrained for rent," and though the landlord joins in the bond, that the goods will be forthcoming, it will not prejudice his claim for rent." Nor does the payment of a deposit into court transfer the property in the goods to the chiimant. It does not give "Darby r. Waterlow (1868). L. B. 3 C. P. 488. UMO}, 108 Pa. St. 301; Hildebrand t. Smith, 8 Lane. Pa 17ft- ^lll'u X ^ ^r ^*- ***=• ^^^ Aa to a clalmanfg iKwition. S?wLVe/a^e^"?i' S.nf Ta° «r""°" '^'"'"' ■** ^•"" ^• n878f'7^w*"*M''/?*S'~''J*^)' ^^ ^•"- 7«: W""» ^- Pitney (1878), 7 W. N. C. Pa. 96; Ware v. Deacon. 7 C. C Pa 368- Oo«<« Batteraby v. Hnnbert (1878). 8 W. N C Pa 94 ' Ktflp. Pa. 149: CoMra Taylor ▼. Bonaffon (1885), 17 W. N. C. Pa. ^'^•nSZP"*^ ^- ^"P" <18W)' 1 Ont- P'- 189. "Ollliam T. ToWaa (1875). 11 Phi!a. Pa. 313. Brown T. Bnttan aSBO), 7 Upper Canada Q. B. p. 90. oisposmox or suubct matteii. 285 bim » title to the good«, if it i« shown in the iMue that he bad no title at the time of the seiznre.^' Where a claimant deposited the value of the goods to abide the issue, but failed to establish his claim, and the money was paid out to the execution creditor in part satis* faction, it wa« held that the creditor was not entitled to seize the goods a second time, for by taking the money out of court, he had estopped himself from thereafter disputing, that as against himself the claimant waa the owner." But the goods remain subject to seizure under the execution of another creditor, and when seized, and another interpleader application is made, the claimant will be ordered to pay into court a second time, the value of the goods to abide the result of the second issue.^^ Pending the trial of an interpleader issue the exjcution creditor has no right to the immediate return of the writ. Any return which the sheriff could make would be of no use to the ejtecution phintiff.^ Under an order, the claimant paid £20 into court, and the sheriff withdrew from pos- session. It appearing, that the plaintiff's execution was for £446, It was held that the interpleader proceedings did not operate as a stay of execution as to the whole debt." But, where goods tre taken in execution, sufficient to answer the judgment, and are claimed by a third party be- fore the sheriff has made a return, although he may have seized and sold, and an interpleader summons has been taken out and is pending, the judgment creditor is not in a position to issue another execution for the amount of his judgment debt, nor is he entitled to serve a bankruptcy notice on the judgment debtor." Kotchte'J''°ThJo^M»n°«i^^l' 1 S; B^ 95 & M5: 9 Report. 205; ir„ I; ''* ^'oW^n Sovereigns (18P8) 2 Q, B 1«4 »^»„m'' ^'^'"^^'' <^^>' 1 Q- B. 05 & 865. KotcUe V. The Golden Sovereigns (1898). 2 Q B 164 (l^sX S'4fl ^iSf^' '* ^- «• ^- ^■'^-^^-- B^ikdeley ^ %, l!' ° ^^- *'• 4"- S«e »«>te P- 200. "Be Bates (1887). 57 L. T. 417. " In r« Follows (1805), 2 Q. B. 021. 't^*^ 136 THE LAW OF INTERPLEADER. 18^- If bond b«eonw wwrtUeifc— \\Tien the claimant takes the goods upon giving security, and they afterwards dis- appear, and before the issue is tried the claimant and his sureties become insolvent, it has been held on appeal in Ontario, that the ckimant cannot be obliged to furnish fresh security as a condition of being allowed to prosecute his claim. The security has nothing to do with the deter- mination of the rights, but with an entirely different mat- ter, namely, the preservation of the property pending the litigation. Upon a further appeal, the Ontario Court of Appeal was equally divided, but agreed that if the goods were still in the possession of the claimant, the sheriff might be ordered to take them.^* When goodi diwppeur.— When a sheriff is directed to withdraw in favour of the claimant, and the execution credi- tor upon appeal shows that such order is wrong, and that an issue should have been directed, and the goods have in the meantime disappeared, the court will order the parties to try an issue, if they can agree upon one, to settle the question of costs, or if they cannot agree upon an issue, \v ill leave it open for the execution creditor to seize again.** The applioant's ooits and oharfea.— As will be seen in the chapter on costs, the applicant has a lien on the subject matter for his costs and charges. If he sells under the order of the court, he deducts these before paying the pro- ceeds into court. If a claimant is to have the goods upon giving security, he must first pay these costs and charges to the applicant, before the goods pass out of the latter's possession.** In sheriff's cases, the usual practice gives the sheriff a lien only for his possession expenses from the date of the order. These are his actual disbursements in carrying out the direction of the court, and the subsequent success of the claimant will not justify an order upon the sheriff to refund these expenses to the claimant, if the latter succeeds ho '•HoKnboom y. Gilliea (i804). 16 Ont. Pr. 96 ft 200. Rondot V. Monptary Times (1809), 10 Ont. Pr. 23. ■ See Chapter XIII. DISPOSITION OF SUBJECT MATTER. £37 can recover them from the execution creditor in a sum- Z;is7of « °°^ °' ''"^ '^"^^^'-'^^ — ^ *« ^ "Himat; When the ckimnt. MtUe— The court will order the from all the claimants to receive it, as to an attorney or .ohcitor acting for them all.- After an order is mad . he sohcitors for the claimant and the execution credi or ^ary Its terms, a sheriff is justified in acting upon their n- T^fZt^Zr - -* «' *^« -Vet matterTo When one cliumwit •bMidow.-It has been said, that if one claimant abandon, or his interest otherwise cease he other cannot take the goods as a matter of course with out showing some title to them. Thus, where an ex- and a bond filed by the claimant, it was held, that before he caimant could have possession he must ^ve proof o ilsn :'«:« w f "? '''' *'** •^^ had given'a bone was not sufficient to enable him to recover." So when one claimant dies, the other cannot have the fund mirely b^juse he IS the only claimant left, he must give pToo"- And If the execution debt becomes satisfied under other claims flL^'l ^' '*"'*''' '' '^'" ^« """^tisfied ;ages irth^siu?^ ToL"s;it ^ut ' ''''' '' '-- ^^o^r Will be condil^r: o" ^: Sl^Sr (1888). 11 Ont. Pr 249 ^' *'"**~ °"*"'*" B»»"' ^' ««▼«" 288 THE LAW OF INTERPLEAOEB. Sheriff always entitled to an order.— Where an inter- plecder order directed a sheriff to withdraw, upon being paid a certain sum by the claimant, and that the sum^ should abide the order of the court, and that no action should be brought against the sheriff; before any further step was taken the execution creditor gave up his claim, and an order was made declaring that the goods were the goods of the claimant. It was held, that such au order was not equiva- lent to an ordfer for payment of the money by the sheriff. He is entitled to a specific order to pay the money out. Where an issue is settled before trial, there still remains the administrative process, to the carrying out of which the determination of the issue is a preliminary step, and the sheriff still holds the money under the order of the court, until an order shall direct him how he is to dispose of it. If the matter were otherwise, the sheriff would be placed iu a position of great diflBculty, in having to determine whether the parties had agreed on the matter, and whether such pro- ceedings taken behind his back, had concluded it. No such duty is cast on him, and he is entitled to wait until he gets an order which relieves him from all responsibility."* Bight of racoeuftil claimant. — Upon the determination of the issue the successful party is entitled to the subject matter which was in dispute." If money has been paid into court, the prevailing party cannot take it out be- fore judgment has been signed.'* Under the English prac- tice, the court or judge who tries the issue may make an order for payment out or delivery over to the successful claimant." Where a claimant, in a sheriff's case, claimed all the goods seized, and paid into court the amount of the execu- tion, and it turned out at the trial that the larger part be- longed to him, and the balance not to the debtor, but to "DiBcount Banking Coy. of England v. Lambarde (1893), 2 Q. B. 329. , " Johnson v. Maxey (1869), 43 Ala. 621; McElroy v. Baer (188(>). 13 Daly N. Y. 442. "Cooper V. Lead Smelting Co. (1888). 1 Dowl 728. " Eng. Order LVII. r. 13: Oht. Rule 1114; for the former prac- tice Bee Marks v. Ridgway (1847), 1 Wels. H. ft G. 8. DISPOSITION OF SUBJECT MATTER 239 Other parties the claimant wm held entitled to a verdict and to have all the money paid out of court to Wm - indIZ ^' 'T;u^ * '^'"^'^ ^t«T>l«ader, is ended by a that the property belongs to the claimant, the sheriff is bound to dehver it, if still in his possession, to the clim ant, and, if, as between the claimant and the execution debtor, the latter is entitled to possession, he must 1 Z claimant if he desires the property.** If an^ecution creditor abandon the issue, in Penn- th IT '"^t"^ ""''''"^ ^" ^^'^'^^ f«r 48 hours, so that the claimant may take proceedings to recover." When an execution oreditor.-After judgment in favour an execution creditor, whether obtained by defaull " Tder a l^U ^"^'T' "' '^^^'^ '^'^ ''^^^ ^ack to him under a forthcommg bond.- He may sell, although the goods have passed into the hands of a vendee of the claim! fd, whether it is necessary that an order should be obtained directing the sheriff to sell, although such is the practice Satirfwtion of bond.-The exigencies of a forthcoming bond are satisfied by the production of the same goods af IT i ?' ^'^^* °* ^^' ^^•'^'"*°*'^ b"t the bond will be Buited% I T "!* ''^"^'^^-S' A claimant who is non! Tol' ^ u"'^ *" "PP'" «* *^« *"^'' ^'^^t produce the fction l:i rV"! '^ '^'''^^°-* I* ^« - <1«'-- to an action on the bond, that the claimant has been obliged to Hill T. RoWngon (1863). 44 Penn St TSn •Brewter t. Cahill (187T). 6 W N. a S.' 147. 240 THE LAW OF INTERPLEADER. deliver the goods to the debtor's assignee in bankruptcy, nor that the claimant arranged that the goods should be sold and the proceeds stand in their place, as that flMrely fixes the amount of the damages.* Nor is it a defence, that when the issue came on for trial the parties agreed to with- draw a juror." The measure of damages is the value ot the goods which should have been forthcoming, and not the amount of the execution.* If a money bond has been given, the successful claimanl will not concern himself about the goods, but will take the bond ov^ of court and institute proceedings upon it. Where the goods of a debtor were seized under several executions, and the debtor subsequently becoming bankrupt, and his assignee cjaiming the goods, an interpleader order was made, under which the goods were sold and the proceeds paid into court to abide the event of the issue. In the result, four of the executions which stood first in order of priority were set aside. It waa held, that the right of the assignee to the proceeds paid into court was subservient to that of the subsequent execution creditors, whose judgments had not been impeached.^ Claimants who participate. — Of the claimants brought before the court, only those can share in the subject matter who take part in the contest and are successful. A claimant who does not take an issue, cannot afterwards participate in the fund with the execution creditors who have success- fully contested the claim.* Ezeontion erediton in Ontario. — ^In Ontario, where all execution creditors placing writs in a sheriff's hands up to within thirty days after a sale, share equally in the pro- ceeds, it is specially provided, that the court may exclude any creditor who refuses to join in contesting the adverse claim, from any benefit to be derived from the contest; and that only those creditors joining and agreeing to contribute *DaTia T. Fonche (1881), 38 L. I. Pa. 186. ■ •WlUlama v. Gray (1850). IB L. J. C. P. 382. • Brync v. Hayden (1880). 23 W. N. C. Pa. SOfi. ' Ooldacbmidt ▼. Hamlet (1843). 6 Scott N. R. OftZ. ' Martin v. Lofland (1848), l6 Bmed. & M. Miaa. 817. DWOSraON OF SUBJECT MATTER. 241 «tl!5'tT°^ "' ''*"*''*^ *^« ••^^^"^ ^'lai'n shall be en titi^ to 8h«.e m the benefit. An .dverse claim bein^ de tne creditors who joined is tie contest.' «u^b«e !Jf fST^"^ t !?Tr'""' '""" "" the ckinuint,, .nd h." „" .t tnd nSd T'' """"^ fMten upon it either in wklV "' ~'""'' "V though the 1C8.1 title it crthri^r "'f'""'"' -^.lS^S;;^^tcir.oZ7o,tr/d to have payment onf i,»,+Ji +k ^^ . ^ " ^'^ *°® ^"""i' .ndt^! ™? '^7?-" """""^ '"" •'«■' P-W i»'o court m the end rebel by „.y of interpleader i. refused, tW ss^;i.an'ro ~ "^- st',s. a, i?:;.- ILLI. U 242 THE LAW OF INTERPLEADER. ■I^licant is entitled to have the fund returned to him with- , out any deduction of costa.^* If a BherifFs application be discharged, he will «tiU have the goods levied upon to be disposed of under the best advice he can obtain." If applicant withhold goods. — After an issue has been decided in a claimant's favour, if a sheriff improperly with- hold goods, he will give a new cause of action against himself. Where a sheriff was unable to sell goods under 'the interpleader order, and they remained in his hands until after the issue had been decided, it was held no part of his duty, without tender of his costs of so doing, to restore the goods to the custody of the claimant, in the same state as they were at the time of seizure.^* ' Pending an app^. — ^Pending any appeal which the un- successful claimant is entitled to bring, money in court will not be paid out, nor the subject matter of the litigation handed over to the so far successful claimant. As the subject matter stands to abide further order, payment or delivery is discretionary, and will not be made pending an appeal.*^ But it may be, upon the condition, that the ap- pellant give security for the difference between the legal rate of interest and that allowed by the court." An appellant, however, invoking the discretion of the court must prosecute his appeal with reasonable diligence.^*^ Where an appellant had obtained a stay of proceedings upon giving security, but was dilatory in bringing his appeal on, the claimant was granted an order with costs rescinding the former order, and directing the fund to be paid out to hita.*' "M'Kiernan v. Kernan (1845), 8 Ir. Bkj. K. 145; Doyle v. DumoDcel (1847), 11 It. Bq. R. 842 «s 617. But see ante p. 71. » See Gray v. Krugerman, 4 G. G. Pa. 290. " McGoUum T. Kerr (1862), 8 Upper Canada L. J. O. 8. 71. " Ktag T. Birch (1846), 7 Q. B. 669; Robinson v. Tucker (1884), 14 Q. n. D. p. 374; King v. Duncan (1881), 9 Ont Pr. 61; McBlroy T. Barr (1886), 13 Daly N. Y. 442. " McDonald t. Worthington (1^1), 8 Ont. Pr. 564. " Greene v. Letterkenny (1868), 8 Ir. B. C. L. 160. "McMaster t. Ooventry. Ont Ol. of Appeal, Feby., 1804, Madennan, J.A., unreported. DISPOSITION OF SUBJECT MATTER. t48 ihJ^^- '""'/ ^T °' ^°*«Tleader bond is conditioned that ^r r°* 7^^ P"^' '^'' '^' ^^'^ the trial or otSr dL 18 against him. An appeal beinir a «+»« i« *u . . . cause or matter, it woSfd seertL%;;rL:rpltVr"^^^^^^ or subject matter, should remain in court mitil thp l!* appeal or final end of the litigation" ^' ^^ to ^r ""i ""It"" ^^^ ^''" '""^^ *«' P^y'ne^t out of court to a claimant, the court refused to stay the ord^r «?*», u a creditor's suit was pending againJlThe JaS Twhifh an mjunction had been m-antpil K„+ i, a j. C^ the officer of the couhr^*''^' ''"^ ^'^ "°t been served on ?'" '>^-«»" »' t-"!". t« dower 'nr.ngtu^tald'::; .. m''£.",t.,?,°1'"o.*.'*?;' s>?"- ••'• >«^ ^-'-.i I... cor. ■ ■ Mom. ,. M.Bi. (1880). » Bpp.r C.M4. L. J. «3. CHAPTER X. IS AN INTEBFLEADEB PBOCEEDINO AN ACTION ? M J What ii an interpleader proeeedingt.— The question has often been asked in statutory interpleader — Is an inter- pleader proceeding "an action" or "a proceeding in an action ?" — ^but th^ judicial deliverances upon this apparently simple matter are many and conflicting. Closely related is the further question, which applies to interpleader gen- erally — Is the order or judgment which is made in inter- pleader to be regarded as final or interlocutory? — and the decisions upon this are also in some degree confusing. Chronolf^^ical litt of deoiiioni. — The following para- graphs contain in chronological order the views which havo been expressed by the Courts upon the above questions and upon some kindred matters. In 182S in New York — The decree obtained by the plain- tiff upon a bill of interpleader is looked upon as final, so far as he is concerned, and not interlocutory.* In 1841 in England — A feigned issue cannot be con- sidered as within the term "action:" the Interpleader Act speaks of an issue and an action as two different things.* In 1845 in England — In effect, the feigned issue and the judgment thereon, i» no more than an interlocutory pro- ceeding in another Buit, in the nature of an interlocutory judgment, wherein the court is subsequently to act in dis- pensing the rights of the parties. It was held, therefore, that a writ of error would not lie from the trial of an intor- pl«*d«r issue.* » Atkinson v. Mankn (1823). 1 Cow. N. T. 681. •Jjott r. MclTille (1841). d Dowl. 822. ' Kias r. Srnmosds (1S^>. 7 Q. B. at p. 311. IS AN INTERPLEADER PROCEEDING AN ACTION? 245 In 1859 in EngJand-The language, "upon the trial of any cause/' appUes to an interpleader cauge. The mischief to be remedied is just as great, for most important rights may be decided in an interpleader cause. « Upon the trial of any cause " is upon the trial of any cause which can come legitimately before a court. It was decided, therefore, in a sherifPs case, that an appeal lay from the trial of an in- terpleader issue.* In 1880 in Upper Canada— FoHoving the practice in England, an appeal lies from the judgment of an interpleader issue, as the term "cause" covers an interpleader cause.' In 1862 in England— Erie, C.J., said:— "I do not see why the word 'cause' should not embrace an interpleader issue. The importance of learning the truth is just as great, m an interpleader, as in any other cause. There are two parties, and there is a matter in dispute. It was there- fore held that interrogatories might be delivered in an inter- pleader issue.* In 1864 in Upper Canada— Thongh possessing many of the characteristics of an action, an interpleader proceeding 18 not strictly a suit in the eye of the law. It was decided, therefore, that an order to rescind the issue must be made lu the original cause.* In 1872 in Maryhndr-A decree passed upon a bill of interpleader, before answers are filed, requiring the fund to be paid into court, and enjoining the defendants from further proceedings and requiring them to interplead, is interlocutory and settles the right of no party, and is at aU times before a final decree, subject to revision and altera- tion, being merely ancillary to further proceedings • tion of a third party for the defendant interpleading, to * Withera V. Ptrker (1880). 4 H. ft N d 814 EpM t 146 THE LAW OF INTERPLEADEB. change the nature of the case from a civil action to a statu- tory special proceeding, and thereby to deprive the>partics of the rights incident to a trial in a civil action. The action remains though the parties be changed. The issues to be tried, remain essentially the same, as they would have been had there been no change of parties to the record, and the plaintiff cannot be deprived by the change of defendants of the rights of a party to a civil action, merely because he is forced to contend with a new and perhaps more formidable antagonist.* In 18H in Ontario — An interpleader proceeding is a proceeding which comes within the meaning of the words " an action at law/' and therefore a party to an issue may be examined for discovery.*' In 1877 in England— A judgment on the trial of an issue is an interlocutory one. Rule 2 of Order I. provides, with respect to interpleader, that the procedure and prac- tice now used by courts of common law, under the Inter- pleader Act, shall apply to all actions and all the divisions of the High Court, and the application by a defendant shall be made at any time after being served with a writ of sum- mons, and before delivering a defence. Under the Inter- pleader Act, the process of interpleader may be carried out, either by making the claimant defendant in the action in which the application for an interpleader order is made, or in somfj other action, or by the more common process of a feigned issue. If the last mode is adopted, ths mterpleader issue becomes a process ancillary to the orK. 12 Q. B. D. p. 104. I S'inP ^- Monkmah (1884). 1 Man. 871. •' McMillan v. Bartlett (1884), 2 Man. 62. IS AN INTERPLEADKR PROCEEDING AN ACTION? 249 In 1885 in England^The English Judicature Act of 1873 gives every inferior court jurisdiction to grant cer- tain relief and remedies in proceedings before such court It has been held that this power refers only to the relief and remedies to be administered in the action, and as the result of the action, and not to an incidental and extraneous pro- ceedmg arising out of the levy of an execution, such as a sheriff's interpleader,*" In 1885 in Manitoba— A claimant in an interpleader issue IS not a party to a cause, within an Act which allows an appeal." Where a statute enacts that no chattel mort- gage can be declared void, as giving the holder a prefer- ence or priority, except by a bill in equity for the benefit of the plamtiff, it has been held that a chattel mortgage can- not be declared void upon an interpleader issue." In 1886 in England— Upon an appeal to the Court of Appeal, from an order of a Divisional Court, dismissing an appeal from the finding of the judge who tried an inter- pleader issue transferred to a County Court, it wa« con- tended that the order made by the Divisional Court upon the first appeal was an interiocutory order, and that notice of appeal had not been given properly, the court overruled the objection and held that the order was a final order." In 1887 in England— An interpleader proceeding is not withm the term "action" in a statute which provides that with the leave of the judge an appeal shall lie in certain actions.** In 1887 in Pennsylvania— An issue under the Sheriff's Interpleader Act is not within a statute which provides, that It shall be lawful for either party in any civil suit or action to choose arbitrators for the trial of matters in variance.** -Spe*™ ▼• DaRgerB (1888). 1 CabaW & Kllii. 803. »l;"^..7- McDongall (1888). 8 Man. eai. McMillan v. Bartlett (1888). 2 Man. 874. Hurte. V. Little (1886). 18 Q. B. D. 32. -Colli. V. Le^a (1887). 20 Q. B. D. 202. ^aaAokea v. Buxton (1887), 1 Mona. Pa. 809. f50 THE LAW OF INTEUPLEADER. :• li :. 1; ,Ji: In 1887 in Canado— The finding and judgment npon the trial of the issue is a judicial determination upon the merits of the matter in contestation, as much as a like judgment upon matters in contestation between pkintiffs and defendants in an action. The necessity of obtaining a final order in the original suit, can have no effect whatever in making the adjudication upon the merits in the issue a whit more final than it already is. The judgment upon an issue tried, on the application of a sheriff for protection from claims made to property seized in execution, and de- termining conclusively, until reversed by some court of competent jurisdiction, the rights of the execution creditor to the fruits of the seizure, as against the claimant, is of a different character from a judgment on an interpleader issue ordered in the progress of a suit, for the purpose of determining a point necessaj^ to be determined before judgment can be pronounced in the suit, during the pro- gress of which the interpleader has been ordered. The words "judgment in a cause or matter depending in any court" are abundantly sufficient to include, and must be construed to include an interpleader issue and the matter in contestation therein.** In 1887 in England — Proceedings in interpleader are substantially a second action. The fact that proceedings in interpleader are a second litigation is not disposed of by suggesting, that for some technical purposes they are re- garded as part of the original action. Names are nothing. Interpleader at the instance of the sheriff is not a natural consequence of a judgment in favour of the plaintiff in an action. It is another proceeding, and it rests with the plaintiff to say whether he will, or will not, become a party to the new issue. The only authority which the industry of counsel has 'discovered, to the contrary, is the dictum of Lord Selbome in 1880, to the effect that interpleader is not an action but a proceeding in an action. This dictum re- fers not to the present question, but to the forms of pro • " Hovey y, WhWng (IffiT), C»n»dft 14 g. C. R. p. 584 e( $rq. IS AN INTERPLEADER PROCEEDING AN ACTION? 261 cedare under the Interpleader Act." The point turning on this was, that a solicitor, under an ordinary retainer, has no authority without special instruction to engage in proceedings in interpleader. In 1888 in Manitoba — An interpleader issue is within the term "action,"" and may be entered for trial on a Tuesday. In 1888 in On/fljrto— Proceedings in interpleader are sub- stantially a second action, and a solicitor retained to collect a debt is not entitled to interplead, without a further re- tainer for that purpose.** In 1891 in England— The judgment upon the triatof an interpleader issue is really in the nature of an interlocutory decision; it is not a final judgment. It is a judgment upoii a proceeding which is itself in the nature of an interlocutory proceeding. The interpleader proceeding may be an action within the meaning of the rules. There is no substantial change in the old law. Under the old law, the judge tried the issue which had been directed at chambers, that is, it was only a step in the regulation of the entire rights of the parties, and the complete adjustment of the rights took place in chambers after the issue had been tried. But there was obviously an inconvenience in having to go back again to chambers, when the judge had at the trial of the issue all the parties before him, or could easily have got them before him, and certainly could better adjust the rights with knowledge of all the circumstances, than a judge at chambers hearing that part of the case afterwards, and for that purpose the rules of court wisely prescribe that the judge who tries the issue shall be clothed with the power, if he choose, of finally adjusting all the rights of the parties, instead of the judge at chambers. It confers upon the judge sitting to try the issue, all the authority and all the functions of a judge sitting in chambers." -^?? ^- ^iS*"*? <^^)' 20 Q. B. D. pp. 166 and 167. -Doufla. v. Bnniham (1888). S Man. 281. -Hackett T. Bible (1888). 12 Ont Pr. 482: MacNair t. Audenabaw (1891), 2 Q. B. BOB. <5S THE LAW OF INTERPLEADEB. In 1892 tn Manitoba— A rule vhich empowers a jud-re sitting at nisi pHu* "at all times to amend all defects and errors m any proceedings in civil cases " is wide enough to embrace an interpleader issue.** In 1898 in Ontario-Where it appeared that the original action in which execution issued was in one county, and the interpleader proceedings in another, it was held that the local judge of the first county had jurisdiction to make an order for the examination of one of the parties to the issue, because the interpleader appUcation was a step in the first action.** '^ In 1893 in England -Under a rule which gave a district registrar, when a cause or matter was proceeding in his dis- trict, aU such authority and jurisdiction as might be exer- cised by a judge at chambers, it was held that the district registrar had no jurisdiction to make an interpleader order but that such application must be made to the master in London.** In 1895 in Ontario— An interpleader proceeding is not an action, and a rule which enables the court to order an action to be discontinued upon terms as to costs, does not apply to interpleader issues.** In 1897 in Ontano-With the object of making the matter clear, in the face of so many conflicting authorities, a rule havmg the force of a statute was adopted in Ontario m 1897 which provides, that "action," as defined by the Judicature Act, .hall include proceedings for reUef by inter- pleader.*' •' In 1898 in Ontano-An order made on a sheriff's appli- cation directing an issue, if the claimant should give secur- ity, and otherwise directing that the goods be sold and the proceeds paid to the execution creditor, is not in its nature iinal but merely interlocutory.** "Fisher V. Brock (1882). 8 Man. 187. ^RuT.'ri^.^'r'eir' " °°" ^'- ^• "Hunter y. Hunter (18M). 18 Can. L. T. 114. 18 AN INTERPLEADER PROCEEDING AN ACTION? 253 In 1901 in England.— An interpleader proceeding is within the words of a statute which gives the court juris- diction to award costs "in any action or proceeding in- Btituted by a married woman/' etc.* DecuioM not reconcilable.— It is not possible to recon- eile all these conflicting decisions, and it might be presump- tion on the part of the author to attempt to extract from them rules, which should be followed under all circum- stances. It was, at his suggestion, and to end such diver- sity, that the Ontario statutory rule was passed which enacts that -'action" shall include proceedings for relief by Interpleader. This considertion of the practice in-inter- lixeader is important, and some further remarks upon it may be permissible, as it has not as yet been comprehen- sively dealt with in any reported decision, Perm of interpleader prooeedinjfs.— The terms "inter- pleader proceedings" and "interpleader proceeding" are somewhat ambiguous. They may mean the whole proceed- ing, or some part of it. There are always two distinct parts to each interpleader litigation. First, the triangular coh- tect m which the stakeholder comes into court in company with the two adverse claimants, ?'Hher by bill of inter- pleader, or in an action of interpleader, or in statutory in- terpleader in a more summary and simple way by summons petition, or motion; and, secondly, the litigation which fol- lows, between the claimants alone, generally taking the form of an issue or an action.*^ Force and ef eot of remedy.— An interpleader proceed- ing, though simple and summary, is, when examined, of considerable force and wide effect. Take the case of a stake- holder who has been sued by both claimants; he comes into court, and in an expeditious manner, without the usual preparatory steps of an ordinary suit, and generally with- out a trial, obtains an injunction which stays both actions 80 far as they concern him, dismisses him out of court with .*r o'"^'^- ^y*"" fatliew8 (1882), 46 L. T. N. 8. 512. INTERPLEADKB AS AFFECTED BY BANKRUPTCY. 268 creditor would have completed his ezecntion by seizure and sale, and been paid in full, but for the delay caused by the first claimant, is no reason why the trustee in bankruptcy should not have the advantage caused by the delay." An execution creditor, therefore, is not entitled to re- gain the benefit of his execution, against the trustee in bank- ruptcy of the debtor, unless he has completed the execu- tion before the date of the receiving order. If, while the sheriff has the goods in his possession, an available act of bankruptcy comes to his knowledge, it is his duty to hold the goods for the creditors generally, not for the particular creditor, who through his fi. fa. has put him in motion." The judge has no power, upon an interpleader applica- tion, to interfere with the rights of the general creditors represented by the trustee in bankruptcy. The inter- pleader can only deal with the rights of the rival claimants inter se; the rights of the general creditors remain wholly unaflfected. If a creditor were to obtain a lien, by virtue of the interpleader order, the result would be, that a credi- tor would only have to seize goods, upon which some one else had a sham claim, and avail himself of that claim, to defeat the equal distribution among creditors, which a Bankrupt Act is meant to effect." Anignee may take tides with ezecation creditor.— It is not always necessary that an assignee should at once assert his paramount right to take goods from the sheriff, he may, if he choose, take sides with an execution creditor, with the object of contesting or getting rid of the claim of a chattel mortgagee. Thus, where a sheriff had seized goods, which were claimed by a chattel mortgagee, and subsequently the debtor made an assignment for creditors and the sheriff interpleaded, it was held, that the assignee was not bound to demand the goods from the sheriff, but might intervene "Bird T. Mathews (1882). 46 L. T. Brodie (1866), L. R. 1 Ex. 802; Mackay v N. S. 512; O'Brien v. p^gg • -— •-'-. "»>.»■/ r. Merritt (1888), 34 W. " Truatee of John Bnrna, Burna v. Brown (1885), 1 Q. B. 324: Brand v. Blckle (1868). 4 Ont Pr. 191. ' Ex parte HaUtns In re Haydon (1877), 7 Chy. Dir. 157- over, roltog Parsons t. Lloyd (1866), L. R. 1 Ex. Sfft. i64 THE LAW OF INTEBPLEAOKB. in the interpleader proceedinge, and ask that an order be made for a sale of the goods under the interpleader rules. It was further held, that the Bankrupt Act did not super- cede the interpleader rule.*» A sheriflE seized, and excepted from the levy certain tools of the debtor, a farrier, to the value of £5 as exemp- tion under the English Debtor's Act. The goods having been claimed by the debtor and his wife, the sheriff inter- pleaded, with the result that in the issue the claim of the debtor and his wife was barred. The sheriff then sold part of the goods, and while the balance was advertised for sale, a receiving order was made against the debtor, and in the bankruptcy proceedings the debtor claimed exemptions to the value of £20, as provided Ji the Bankrupt Act, and asked that the sheriff be restrained from seUing. The as- signee did not ckim the goods. «u^d declined to intervene. It was held, that it was the dut, of :he sheriff to complete his sale and pay the proceeds, less hiS charges, to the assignee notwithstanding the fact, that if the assignee had asked for the goods and received them, the bankrupt would then have been entitled to further tools to the value of £15." The effect of the theriff's Mde.— ^Vhen a Bankrupt Act provides that an execution creditor shall not retain the benefit of his execution, unless completed by seizure and sale, and then only in case no bankruptcy proceedings are instituted within fourteen days thereafter; the sale by a sheriff under an interpleader order has been held to com- plete the execution by seizure and sale, so that a receiver intervening within the fourteen days, is entitled to the fund, when the claim of the adverse claimant has been withdrawn or defeated. The Interpleader Act protects the sheriff, but does not alter the capacity in which he sells, or that in which he holds the proceeds of goods levied upon. He sells in his capacity of sheriff under the writ of fi. fa., not under some trust or duty imposed by the Interpleader Act." sa..- "Stem T. Tegner (1808). 1 Q. B. 87. "R« Dawson (1800). 2 Q. B. 64. Heathcote v.Livesley (1887), 10 Q. B. D. 285. INTEKPLKADER AS AFFECTKD BY BANKBUPTCY. 266 The New South Wales Insolvent Act provides, that where a debtor's goods have been taken in execution but not sold they shall, in case of bankruptcy, form part of the insolvent's estate. And where an interpleader order was made, under which the claimant paid a sum into court and took the goods, and the debtor subsequently became insolvent, it was held, that this was equivalent to a sale, and the court refused to stay the interpleader proceedings! The claimant having abandoned, it was further held that the execution creditor was entitled to the money" In another case, where the claimant paid the value of the goods into court, and the debtor became insolvent, the court directed that the money should be paid out to^the claimant, upon the execution creditor failing to proceed •« and where, under similar circumstances, the claimant, thmkmg that the interpleader was at an end by reason of the insolvency, failed to prosecute, an o der was made bar- credits "*^' '^^ directing payment out to the execution A i.^*^?^^ o«iM._A stakeholder who is liable for a debt which he is willing to pay, wUl be allowed relief by interpleader, although the debt be claimed by the assignee m insolvency of the creditor, and also by the creditor him- self, or by an ordinary assignee of the latter. If the credi- tor has sought to enforce the collection of the debt by an action, in which he alleges that the commission in bank- ruptcy IS invalid, and that he intends to dispute it, such ac ion must be stayed by the interpleader, for the court will never permit a bankrupt to proceed in an action affect- ing the validity of the commission when the assignee is not ^Harris v. Solomon (1879). 2 8. C. R. N. S. Wale. N S «»7 "Slo^^; ^"""^"ffe (1887). 4 N. 8. Wales W N^ 40 ^• -wi!, "'°® V Howell (1887), 4 N. S. WaleaV W N 64 Mj;s"2: i;„^-,ef-(?8i).Tb5: St^}.r5s:^s 266 THE LAW OP INTERPLEADER. ifr Thne, where an uncertificated bankrupt brought an ac- tion for the value of work done by him after his bank- ruptcy, and the amount found due was also claimed by the bankrupt's assignee, the defendant was allowed relief by interpleader.'* The same practice prevails when one claimant is a re- ceiver appointed by the court. Thus, where a deposit was claimed from a bank by a receiver appointed at the instance of the depositor's creditors, and also by a present holder of the certificate who had taken it after the receiver had been appointed, the bank was awarded an interpleader." Interpleader by asiignee.— In some cases an assignee in insolvency has himself been allowed to maintain interpleader proceedings, where goods in his possession have been claimed adversely by a chattel mortgagee or some other adverse claimant. Thus, in ai^ Ontario case, an assignee was permitted to call before the court as claimant?, the creditors who had sued out the writ of attachment in in- solvency, and a third person who alleged that the debtor had transferred the goods to him. The court would not give effect to the creditors' objection, that the assignee was not a mere stakeholder in the proper meaning of that term, and should have applied for reUef in the insolvency nro- ceedings.** In Missouri, an assignee for creditors who was in pos- session of a fund, the proceeds of goods sold, was al'owed to maintain interpleader, where the money was claimed by the creditors and by a chattel mortgagee.** But in Maine, relief was refused to an assignee, upon the ground that he was himself really a claimant upon the fund in his own possession;*' and in a Maryland case, the court re- fused to interfere, where tne validity of the assignment "Jonea v. Tnrnbnll (1887). 2 M. ik W. 001. "Jamfin V. Sams (1802), 90 Ga. 404. -Wella V. Hewa (1876). 24 Grant (Ont.) 131. .<> o 0'*nt'« ABslgnment, Fee v. Wolfe (1888). 74 Mo. App. m. Bee also Bettman v. Hunt, 12 Weekly Law Balletin (Ohio), "Caatner v. Twltchell (1S88), 91 Me. B24. INTERPLfEADBR A8 ilFFJCCTBO BY BANKBUWCT. 267 was in question, because the assignee was interested in up- holding it, on account of the commission which would ac- crue, and so was not an indifferent stakeholder." London Conrt of Bankruptcy.— Where goods seized by a Hhenfl under an execution issued by the London, England, Court of Bankruptcy, were claimed adversely, it was heU' that such court had jurisdiction to make an interpleader order, because, by the statute, the Court of Bankruptcy had ail the jurisdiction formerly possessed by the Superior Courts of Law," Bheriff of Middlesex in re Buclc (1879), 10 Chy. Div. 575. w CHAPTER XII EVIDENCE AT THE TBIAL. Dep'Adi on the form of the proceeding.— The evidence which xs to be adduced by the claimants, when they come before the trial judge, depends very largely upon the form of the proceeding which has been directed by the inter- pleader order or decree. If an actipn has been directed, the claimants stand before the court subject to such rules of evidence as would be applicable, had one of them originally commenced an action against the other.^ But where an issue has been directed, it follows from the brief way in which it is worded, and in the absence of detailed pleadings, that many questions must arise in relation to the evidence which each party may tender in proof of his own title, or for the purpose of disproving a pritr"'. facie title established by his opponent, as well as to matters which are assumed by the court without formal proof, and which neither party may controvert. Conitmetion of the iirae. — Interpleader issues are directed to inform the conscience of the court, and unless they are framed with a view of meeting the real questions likely to arise, they are of little benefit. They are the creatures of the court, and the court has a right to deal with them, as if they stated very fully the question which the parties go down to try, instead of looking at the short way in which it may be stated in the issue. The modem »Horton v. Baptist Church (1861), 34 Vt. 809; WUUson t. Salmon (1888). 45 N. J. Eg. 257.. ■VIOBMCE AT TH« TBIAI* 269 view of an interpleader issue is, whatever the form the sub- stance must be looked at, and the object being to inform the conscience of the court, it is often immaterial for that purpose, which party is made pkintifl.* The onu. — The proper rule in framing an issue, is to put in the position of plaintiff the party upon whom the substantial onus of proof should properly rest.* When a tenant has called upon his landlord and a third party to interplead, the burden is not upon the landlord to allege and prove that he was a bona fide purchaser for value without notice, but is upon the third party to displace the landlord's title.* Oronnds which oUimanti may set up.— Where the issue contains no limitation of the title which a claimant is to be allowed to set up to the property in question, it is open to him to set up any ground by which he may substantiate his claim.* The generality of the terms of an issue, " whether the goods are the property of one claimant as against the -other," shows that it is the object of the court, in directing it to be tried, to place every thing in issue which constitutes the title of the plaintiff. If it be intended to limit the enquiry, the issue should be narrowed when the parties are before the court upon the original interpleader application.* Technical objectioM.— It is generally desirable, that technical objections, which prevent the trial of the matter really in question, should be waived or disallowed, in order that all the information which it is the object of the issue to obtain may be supplied.* Formerly the rules regulating the admissibUity of evidence on interpleader issues, were &r^VbS"'a/jr' " "• ■=• ■=• -• «''»^' ••• •Doran v. Toronto Suspender Co. (1890). 14 Ont. Pr. 103. IS^"2?f'' ^- Harlow (1882). 96 Cal. 29a •Be HUton (1882). »7 L. T. 584. nsiJ^'n «*'«iA S^.^>' ® ?."^*- ^= Boaanquet t. Woodford H^ W 5OT ■ ^* ^^^"^^^ ^*®^*' « H. & M. 466; 1, (ismTS'^V'T^B^^^^' " ^ ^- ^- ^- ^^= ''"**^ ^- ^'** 270 THE LAW OF INTKRPLKADXR. not adhered to with the same ittrictnesg as on ordinary triaU.* In 1878, however, in refuaing to give effect to a contention that a tect lical objection should not be received in interpleader, an English judge remarked, « that of late years there has been no difference between the evidence received upon the trial of an interpleader issue, and in other cases."* Because an issue is directed to inform the conscience of the court, upon the particular question of fact sent down for trial, it has been held in some instances, that technical legal objections ought not to prevail at the trial, for other- wise it would be idle to direct the issue, and so put the parties to the delay and expense of a useless trial. Thus, the court refused to hear an objection, that in the affidavit annexed to a marriage settlement, under which a cUimant made title, the grantor was not describ^ by his real occupation of a ship broker or coal merchant, being designated merely as broker;*' as also an objection, in an issue sent for trial between two corporations, that certain individuals were mem- bers of both." The fact, that the exclusion of evidence upon some point, may prevent the whole question from b-ing decided upon the trial of the issue, is no reason for its admission, when such evidence may still be properly received when the parties go back to chambers for a final order." Xatten not eontrovertible.— In some instances the court assumes as a basis for an issue, the existence of certain facts, and these may not be controverted upon the trial of the issue. If either party desires to disprove such matters, he must have the issue pointed to them." Thus, as a gen- eral rule, in sheriff's interpleader an execution creditor is •Roscoe'B Nigi Prius. 16th Ed., p. 281 Emmott V. Marchant (1878). 3 Q. B. D. 555. • Qagen v. Sampmn (1866), 4 P. ft p. 974 » Sl^"^**"*^ ^- Woodford (1846). 5 Q. B. 310. "Bird V. Crabb (1861), 7 H. & N 996- 30 I. r Pt aiH. Mnckle«t«n v. Smith (1867). 17 U. C C P 401 ' " Llnnit v. Chaffen (1843), 4 Q. B. 762.' EVIDENCB AT THE TRIAL. 171 not obliged to prove his judgment and execution;'* nor can a question, as to whether the sheriflf had abandoned the goods, be raised on the trial of the issue." And where one claimant derived his title through a railway security, known as a Lloyd's bond, the trial judge was held to have properly excluded all evidence as to the circumstances under which money was originally loaned upon the security;'* so, in an issue between an execution creditor and a trustee in bank- ruptcy, as to whether the execution is valid as against the fiat in bankruptcy, the execution creditor cannot give evi- dence to show that the debtor never really became bank- rupt, and that the act of bankruptcy was only colourable." Where a claimant, who was possessed of property, had been confined in a lunatic asylum, and upon the lunacy proceedings being compromised, had placed her title deeds with a certain custodian under an agreement; upon the trial of an issue, as to whether the claimant, notwithstand- ing the agreement, was entitled to the possession of the title deeds, the court held that it was not necessary for her to prove her title, the question being only whether the agreement prevented her from insisting upon her title." In a Manitoba case, where defendants against whom judgment had been obtained claimed upon an interpleader, that the property seized as goods was real estate and so not exigible, it was held that for the purpose of the interpleader the property must be assumed to be chattel.'* The right of a national bank in the United States, to enter into an agreement with its debtor, whom it has sold out by a sheriff's sale, to continue the business as its agent, cannot be enquired into on a sheriff's interpleader." T w.^^^-' ^- MatthewB (1847). 4 Carr. & K. 148; Richards v n« : • » McWhlrter t. Leannouth (1868). 18 p. C. C. P. 13rt: Rlpsteln V. Bntish Canadian L. & I. Co. (1880). 7 Man. 110; Blum v. Earner (1879), 1 Leg. Rec. Pa. 113. "Gny V. Ambrose (1886), 3 N. S. Wales W. N. 136. "Blackmore v. Yates (1867). 2 L. R. Ex. 225. "Linnit V. Chaffers (1843). 4 Q. B. 762. "Cnmming v. Ince (1847), 11 Q. B. 112 "Dixon v. McKay (1889), 12 Man. 514. "Lipplncott V. Longrbottom (1889), 6 C. C. Pa. 503. S72 TBI LAW or IKTBHPLKADKB. J«dffB«Bt ud «ue«tiaB m •fM«MC— An execution creditor, u mentioned above, is not required m agunst the claimant, to prove hi8 judgment and execution." In prac- tice he subpoenas the sheriff to produce the writ of /f. fa., and thus proves the seizure under an execution and judg- ment which are assumed to be regular. When the claim- ant is called upon to show that the goods are his, as against the execution creditor, the form of the issue assumes the right to seize by virtue of a judgment, and the creditor is not bound on the trial to show that he has recovered a judgment. If he succeeds, it does not matter to the claim- ant, whether he has recovered a judgment or not. If he fails he has no right to contest the seizure.** But if the issue is between two execution creditors each claiming priority," or between »n attaching creditor and an execution creditor** the creditor upon whom the onus rests may be required to proVe a judgment as well as an execution, ^r his judgment may be impeached by the other claimant. It has been held in Pennsylvania, bat the ckimant may attack the bona fides of the judgment upon which the execu- tion was issued, and show that it is fraudulent, when the claimant's title is founded upon transactions between him and the debtor.*' When goods are seized in the possession of the claim- ant, the claimant, claiming under a sale to him by a sheriff under a previous execution, is not called on to prove the judgment under which such execution issued.** When plaintiff shows title to part.— The issue is not to be decided against one claimant, if he claim all the goods, and it turns out that he is only entitled to some of them. r W.w*'^*'**'^7- If ■'"»«** <1868). 18 U. C. C. p. 130: Bipstein T. Britlnh Canadian L. & I. Co. (1800), 7 Man. 119 asmltoZ: S."?!?' ^'^^' '' ""- ""■ "" ^' *^'' "^'^ '• ^"'«' "Newman v. Lyons (1802), 8 Man. 271. »^MacOTnaW"v. CnrnmingK (1802), 8 Man. 406. "Hartley t. Weideman. 3 Dig. Rep. Pa. 336. "Hammill ▼. De Wolf (1861), 10 ti. C C. P. 419 Pte^ XVIDUrCK AT THl IBUL. S78 The iMue I. to be taken dtttributirely, uid it mewu »e theje good, or p«t of them, «,d if «, what pert, the pro- ZZ^ ^iT'f ''' ■"'^' •^'^^^ " ^« ?«>'«• "tie to, the good. Mized or «iy part thereof." The onu. Ue. on a pUmtifl claimant, to .how clearly to what article, he h«^^Utle, and rf he be nmible to do .0, he can recover th.^^*7*!^ ' ^^ ^•-^' " °°t »ece.«ry for Tr r^' ^' ""'^ r^ '"*^'^ "P°^ ^t' «"h«' i'^ whole 1^.T "I '^'^*'^'' "«" '' *""* ''W^h one of the ^hTr °"^ ' «;taWi.hed. though the legal title be in t?h^ J; ?' T1 '' °°* ^"^^ *° »^"d *he property ^teilhe'CrttV^W^^^ ^ ^J ^ T^^^*^ ^^^ th« ii'«„n k rl- / "' '° ®***t, the principle of BhLl i^^vL '*^'' ""''' ''^*'' «"**'*-' t J the'^oort «- t!!"^ wu"^"?*'' ""^-^Po^ the uenal .heriff'. i^ue wheX? hfv 'Tk*'°^ '''^*"' *^« ^'^^^tion is not, a. to whether they are the property of the claimant absolutely. 10 U. C. C. P 82- 8tPnh««. J Vf*^". ''• ^""^ »' Toronto (1800) »W. W. *«, 187S, «c. 24 (7). H. s.o!°i»7, .. 5.. ^ „ ,„,. K.I..I. u S74 THK LAW OF INTERPUEADEB. !;! mm I- f but are they his in any sense. This form has been adopted for tbo express purpose of enabling any person lawfully ent! d to possession, to sustain his claim against the ex- ecntian, by showing that he has either a general or a special property in the goods. He will accordingly be allowed to show that he has some interest, which eitiier defeats the right of execution, or is to be respected in its enforcement.*^ A claimant will therefore be entitled to succeed, when he proves that the legal title is in himself although he is a mere trustee or agent for the management or sale of the property,** where he shows a lien as an immediate right of possession,** where the issue was 'had the claimant any property ' the goods having been loaned to him,** or where he shows title to all the goods though he may be bound to account to a third party for part of their proceeds.*** A cestui que trust in possession of goods has a sufficient interest to maintain a claim, without joining the trustee in whom the legal estate is vested;** so, a claimant on show- ing that she had an equitable claim at the time of seizure, and that the party in possession was holding for her, was held entitled to succeed.*^ Where there are two clai-nants of goods seized in execu- tion, it is not necessary that they should show a joint owner- ship. They may either show a joint ownership, or that each owns a part, all that is requisite to defeat the execu- tion is the fact that they are indeed the owners.** Claimant bound by flrtt claim.— In Pennsylvania, when the claimant in a sheriff's interpleader, claims an absolute and exclusive ownership in the goods seized, he will not bo .-„-"^'**" ^- SterenB (1867), 2 H. & N. 140; Schrooder v. Hnnrott (1873). 28 L. T. 8. 8. 704; Grant v. Wilton (1850), 17 U. O. Q. B. 144; Bryce v. Kinnee (1802), 14 Out. Pr. 500. "Campbell v. Cleveatine (1802), 140 Pa. 8t. 40. "Rogera v. Kennay (1846). Q. B. B02. •♦Green v. Steven* (18B7). 2 H. ft N. 140. '•8h«ve V. Finn (1800), 134 Pa. 8t. 188. "Schroeder v. Hniirott (1873), 28 L. T. N. 8. 704; Oonnell T. HIckock (1888), 15 Ont. App. 518. " Blaok V. Droulllard (1877). 28 U. C. 0. P. 107. "Van Winkle r. Young (1800). 87 Pa. St. 214. KVIDENC* AT THE TRIAL. v$ pemitted upon th'e trial of the issue to set ud a Umii.A Bh p and thus stayed the creditor's execution, he cTnot .et up a hinited or restricted interest on the trial' iZuse If only a limited interest had been claimed at fii7 the would h'^'l^*'' "'^' '''' •*^^**>''« -*--t. and Ih re would have been no need for an interpleader. Thus hav! 7 n.*^ "°^"*^'««^ proprietolip, if he ca^' on,; wUh .i 5 t " *'^ '^^*°^« ^«--' «>' 'Vint ownersWp with the debtor, or a life estate, or that he has only a Hen the verdict must be for the execution creditor »• * It 18 also the rule in Pennsylvania, that when a claimant hmits his title in the first place by claiming only I quS trial of the issue maintain his claim by proof of absolute owjie^hip, proof of his limited claim' ^U only tti In Pennsylvania, the issue must correspond with the claim, and the claimant can only sustain the' issue Jypro^! fhpt J *"*' *°^ ***" «^'^«°«« "Ix'^ed that he held the goods as agent for another, it was held that the verdict must be for the defendant, and the court refld to alW L%TSr ^i,tf '': '"^"^-' ""'''' '^ -'^^^ «8 P'«»n"ff. But It IS not error to permit a claimant to. m the original declaration.** "»"cu sheriff !hrt1:r, ^* V° •» P«"- «-es notice to the Sheriff that he claims the goods which have been levied made r/' ,' ''""'* f *''^°°^ *^« <''*i'° ^^ich he Srst made and rely upon other grounds." "WurKril-^ \t V ' " ^- ^^'•mnn (188.1). 2 Chest Pn 2M Wavorly V. MoKonnnn (1885). 110 P« a/ Kim ^* -Battle. V, Winer (1888). 24 W V r p! i -Thomn.«„ V. De L,.„ „88,). 2 n! S.' W«,crL. R. m. j; I I* ' t76 THE LAW OF INTERPLEADER. What elaimut mnit thow igainit tii execntion. — When the burden of 'proof is upon the claimant in a sheriff's in- terpleader, the question is not, whether the execution credi- tor has a right to seize the goods under his writ, but whether the claimant has such an interest in them as entitles hiia to resist the seizure. No one has any right to interfere with the execution, except a person who has either a general or a special property in the goods. The creditor with his judgment and execution is considered to have title. If the claimant fail to make out his case, there must be a ver- dict for the execution creditor, who having a judgment and execution, is not bound to offer any evidence to show a right in himself. If, when the issue comes on for trial, it is proved that the goods were in the jwssession of the debtor, and the claimant is unable to give any further evid- ence, and no further evidence is given by either party, the possession of the debtor is prima facie evidence that the goods were his, and on that footing the seizure was right, for there is nothing to show that the claimant had any claim. If the claimant goes on further, and gives some evidence, which shows conclusively that he had absolutely nothing to do with the goods, and that his claim was al- together unfounded, the result must be that the issue will be determined in favour of the execution creditor.** The moment at which a claimant disputing an execu- tion n^ast show his title, is at the moment before the sheriff seizes. And an issue worded, whether the goods are the property of the claimant as against the execution creditor at the time of the execution, must be so construed.** It has also been held that he must show title prior to the time at which he interposed his claim.** "Green v. Rogera (1848), 2 Carr. & K. 148; Edwards r. Matthews a847), 4 D. ft L. 721; 16 L. J. Ex. 291; Richards v. Jenkins (1887), 18 Q. B. D. 461; Grant v. Wilson (1859), 17 U. C. Q. B. 144: Conklln v. Sayers, 1 T, & H. Pr. Pa. 907; Blum v. Warner (18T9). 1 Leg. Bee. Pa. 113. "Richards v. Jenkins (1887), 18 Q. B. D. 451. " EMiri T. Folmar (1893), 103 Ala. 491. EVIDENCE AT THE TBIAL. 277 A« a general rule, when a claimant is in possession evidence of that fact is sufficient to enable him to itTbS ^ cW Thus where an execution creditor, aTcordSg lotn r^T^'.^"' °° "«^* ^"^ ^^' th« ^J^'^nt need! no ^tter title than his possession to enable him to succeed « ant^nT. '"^^ !*''''""'' " ^*^ ^'^'^ ^'^^' that the claim- ant ma feigned issue must prove title to the goods it is not sufficient to show mere possession." ' When claimant may not niie jni tertii.-When it an- pearo that the claimant was not in possession and that he t .U. T^ """ "''""'* ^ *^* «°°^« ««i^«^> he will not be avowed as a general rule to set up the title of a third of dlw T' ""^ ^ *^" -'■«* '*'•'"' ^ith the object of defeating the execution, as for instance by showinir that the title !« ,n the debtor's assignee in bankrVy ani no m the debtor at all.« He must recover upon the stren^h to esLh K^'''* "'^''''^ ^^^^^^'^^ ^hich does not go to establish the ownership of the claimant is irrelevant The object, is to allow the claimant to show that t This that ':; "' *"^^' '' '' '' "^***- °* - concern to ht; that ome other person's property may be wrongfully seiz^ or sold by the sheriff." * ^ A claimant cannot give evidence of a seizure under a prior execution, or of a landlord's distress, witHhe oMect of defeating the present execution creditor's claim to a bai* satisfied, nor can a claimant show that the execution credi- tor IS really the assignee in bankruptcy of the j^d^ent aflOlM%;B.^"S" "'^^' ^^ ^'-^»1'- ^n»'n., V. Mather m^nn^t^io^V^]' ' ^''"'- P'- "3; Thompson v. W.tep. "Belcher v. Brotni (1848). 6 C. B. 608. 278 THE LAW OF INTEBPLEADKR. debtor, in order to estop the creditor from claiming the goods levied on for his own personal debt.** When oUimant may tet up ju tertii.— But if the claim- ant claims through or under, or by the authority of a third party, he may set up the jus tertii, or title of such third party, so as to defeat the execution. It is competent for him to show any facts warranting his interference with the process of the execution, even if the property in the goods be in another, provided always that it will not work a sur- prise upon the execution creditor, and that the claimant appears to be in privity with or claiming under the real owner.** Where the claimant was a second mortgagee of goods, having only an equity of redemption, he was allowed to set up a jua tertii to the extent of saying, ' you cannot sell either as against the first mortgagee or as against me, I have all the property in tEfe goods which the first mort- gagee has not.** An issue worded, 'are the goods the property of the claimant,' may be amended at the trial by adding the words, ' as against the execution creditor,' so as to let in the ques- tion of the jus tertii for the benefit of the claimant and his privity.** A claimant under a bill of sale from the debtor, may raise the question that part of the goods were exemptions, and that the debtor could do what he pleased with them, although the question of exemptions may not have been raised when the sheriff seized.*^ When the claimant is defendant, and the burden conse- quently upon the execution creditor to show that the goods are exigi' ' by evidence of title in the debtor, it would seem upon principle, in the absence of any reported decision, that the claimant may give evidence of a jus tertii, and so ■ Rhoads v. Heffner 0880). 1 Walk. Pa. 377. •* Belcher t. Brown (1848), 6 C. B. 608; Bryce v. Kinnee (1802). 14 Ont. Pr. 609: O'Callaghan v. Cowan (1877), 41 U. C. Q. B. 272. Taher t. Martin (1889), 24 Q. B. D. 272. "Bryce t. Kinnee (1892), 14 Ont. Pr. 509, "Field T Hart (1895), 22 Ont. App. 449. KVIOBNCK AT THE TRIAL. 279 defeat a pnma fade title shown by the creditor in the debtor. When ezeention ereditor maj let up ju tartU.— When the onus is on the claimant, and he has given evidence which ahows a pnma facie title in himself, it is competent for the defendant the execution creditor to defeat the plain- tiff's title, by showing that the real title to the goods was not in the claimant at the time of seizure, but in some other party. Thus, where the claimant' claims under a bill of Bale from the debtor, his title will be negatived, if the ex- ecution creditor can show a prior bill of sale to another, or that the goods passed to an assignee in bankruptcy before the claimant acquired his uJe, or that the bill of sale is null and void, having been made without consideration and for the purpose of defeating creditors. To enable the creditor to give such evidence, it is not necessary that the issue be expressed to try whether the instrument under which the claimant claims is void for any reason, nor that the interpleader order should provide that such a course shall be open to the execution creditor.'* When aeontion creditor can not let up jni tertii.— But when the execution creditor is plaintiff, and the onus of proof is upon him, it has been said that neither on authority nor on principle can he justify the taking of the property from the possession of the claimant, by showing title in a stranger, the burden rests upon him to displace the title of the claimant by showing title in the debtor." awlMt Ihl nylZ !"!l '"}'' "* •"^"♦""^ *»»« cti>A\toT, but good a. E^M w» ^^' .-«» "•■;»-sS.;„'v 280 THE LAW OF ^.^TERPLEADEK. QuMtiaiu of estoppel.— Although an execution debtor may be estopped from disputing the title of a claimant to whom he has made a transfer, this estoppel does not pre- vent the execution creditor from showing that the claimant has no titlo as against him. Such estoppel gives the claim- ant no real title or interest in the goods. It merely pre- vents the debtor who is estopped, from saying aa against the claimant, the goods do not belong to you, although in fact they do not belong to him, and it only takes effect between parties and privies. If the execution creditor could, for this purpose, be said to claim through and under the execution debtor, so as to be in privity with him, he might be estopped. But he cannot be said to so claim, he claims through and by the law as against the execution deb' ^r, and not through and under him. A sheriff, accordingly, #ho comes to seize armed with a writ of execution, in favour of a creditor, is not bound by estoppels which would prevent the debtor from resisting the claimant's title.*' As expressed in Penn- sylvania, the validity of a transaction between the claim- ant and debtor, is not the test of its validity against the execution creditor.** The mere fact that a claimant has taken some transfer from the execution debtor, after the writ was placed in the sheriff's hands, should not, in the absence of any explana- tion, be allowed to estop the claimant from denying the debtor's title, for such a transfer may merely be a confirma- tory assignment, or an assignment of such an interest as would not be bound by an execution.** When an insurance company files a bill of interpleader, to get rid of adverse claimants, and pays the insurance moneys into court, questions of insurable interest and of misrepre- sentation cannot be raised by the defendants. The insurance company alone can raise the question of insurable interest.** -RIehardsv. Jenkins (1887). 18 Q. B. D. 451; Elchards v. Johnston (1859). 28 L. J. Ex. 322; 4 H. & M. 660. " Janney y. Howard (1802). 150 Pa. St. 339. " Macaulay v. Marshall (1860), 20 U. C. Q. B. 273. T T*^^ ^ifT^* Mutnal Life Ins. Co. v. Ladver 0900). 30 Ins. Li. J. 863 (R. I^ IVIDENCE AT THE TRIAL. 281 When raperior title onirttoding.— Where there is really adverse title in a third person who is not present, which, if that party chose to assert it must prevail over that of both the claimants alike, and that person takes no step and does not seek to enforce his superior title, the decision will be betweem the parties present, upon their titles apart from that of the superior one. This is a legitimate appUcation of the maxim, ' potior est conditio defendentis.'** The. successful claimant, therefore, acquires a good title to the moneys in question, and that notwithstanding the fact, that there may actually be another claimant, who still has a right of action against the stakeholder for the game fund." But in a Missouri case, where the court found that neither claimant was entitled, but that the money belonged to another, the matter was remanded so that such other might be brought into court.** A judgment in favour of the claimant on a sheriff's inter- pleader as against one executio i creditor, is not evidence of ownership on another issue, as against a second execution creditor.*^ When evidence does not ihow who is entitled.— If the facts before the court are not sufficient to enable it to de- cide the point at issue, it should adjudicate against the party, whose duty it is to put the necessary facts in evid- ence.«« Thus, where the titles of both claimants appeared defective, the one who was in possession was held entitled to succeed." Where the property is a fund in court, the court will not actively interfere to dispose of the fund, except in favour of one, who from proof appears best entitled. Accordingly when one claimant has died, and the proceedings have abated "Bif«1,M' ""• ^^SJ'"" ^^'"' " Q- B. D. 544. T. 2M ""• ^^""^ ^"^ '"'• ^'o- '!«»«). 6 App. DIr. N. "KitrrP^ii^rV^^f ;^- 2- ^i^- ^1«»»). 38 Mo. Ano. 643. Walk Pa. 27 ^ ^' ^^ ^"- ®*- ^' Po'"'"'" y. Po<», 1 -Ex p. Waldmn HRTO). 9 N. g. Wnles S. C. R. 329. -Davis V. Lerey (1861). 11 U. C. C. P. 292. i n 282 THE LAW CF INnRPLEAOKR. as to him, the other cannot hare the fund merely because he is the only claimant left.^* It has been said, that the claimant who succeeds must make out a case, such as would have entitled Ydsa to succeed i^inst the stakeholder or debtor.^* ETidenoe reitrieted to rabjeot in diipnta.— The evidence must be limited to the property which was the subject of the interpleader. The contest proceeds between the claim- ants to the specific property involved, and as to that pro- perty alone. To permit outside issues, and matters affect- ing the claimants, but not connected with the subject of the action, would confound the action and lead to confu- sion.** Adminioni by the applieuit.— Admissions or statements made by the stakeholder or other applicant for relief by interpleader, should not be used as evidence at the trial be- tween the claimants, thus, one claimant cannot give in evid- ence, that the applicant stated that he thought such claim- ant was entitled.** And where the applicant obtains evid- ence under a commission to establish hie right to relief, the evidence so obtained cannot afterwards be iised upon the issue between the claimants.** The fact that the applicant pays the money into court, does not in any way better or prejudice the legal position of either claimant.** But in California, where a tenant interpleaded his landlord and a stranger to the lease, the stranger was allowed to avail him- self of the tenant's admission, that he owed the money to which ever of the claimants was entitled to it,** Execution debtor as a witnen.— Admissions by the execu- tion debtor have sometimes been refused as evidence, upon " Pillow v. Aldridge (1843), 2 Hum. Tenn. 287. " Ireland t. Ireland (1886). 42 Hun. N. Y. 212. " Windecker v. Mutual Life Ins. Co. (1896), 12 App. Div. N. "Shipman t. Freeh (1889), 15 Daly N. Y. 151. ~ Kemp V. Diokinimn (1880), 22 Hun. N. Y. 683. «col7'*'j?'"^ ^- ''•*'««"<1 (1886), 42 Hun. N. Y. 212; Ballon ▼. Oile (1880), 50 Wia. 614; Keener v. Grand Lodge A. O. U. W. (1880). 88 Mo. Ai)B. 643. "Wamock y. Harlow (1892), 96 Cal. 298. BVIOBMCC AT THE TRIAL. 288 the issue in a sheriff's interpleader. Thus, they are not receivable in evidence for the claimant, when made prior to the date of the assignment under which he alleges title ;^^ and, on an issue between a garnishing creditor and a third party claiming the attached moneys, evidence of an admis- sion by the debtor was refused admission when tendered by the third party.^* In Pennsylvania, the execution debtor is considered a competent witness for either the execution creditor or the claimant, but the party calling the debtor has no right to examine him, as if on cross-examination, and is bound by hi« testimony.** On an issue involving the validity of a judgment by con- fession, declarations by the debtor in the absence of the execution creditor, tending to show that the judgment was fraudulent, have been held inadmissible, without prior evid- ence that the execution creditor was a party to the fraud," Harried woman, in PenntylTania.— When the claimant is the wife of the debtor in whose possession the goods have been seized, the rule in Pennsylvania is, that she must show by clear and preponderating evidence that she is entitled. The presumption is that the goods belong to her husband, and the burden is upon her." The husband's declarations adverse to the wife's claim are not admissible in evidence;** and the wife is not a competent witness to support her own title, unless her husband disclaims ownership." Claims under chattel mortgages.— When a chattel mort- gagee who is plaintiff in an issue, gives proof of a mortgage duly executed, this shows that the title and property in the goods passed from the iudgment debtor to the mortgagee ™Sr~*'\^-. ^••■IV"" <18^>'). 3 Ex. 183: 18 L. J. Ex. 105. " Mawhall V. May (1809). 12 Man. 381. 141 Pa! S??27 • "' ^°'"*"* ^- Goo^ye" dSSD. -Unangst v. Goodyear (1891). 141 Pa. St. 12T "Martin v. Butt (1889). 127 *P«.. St. 880. I 284 THE LAW or IMTKItPLEAOBR. before the seizure. The pUintiff has then proved cnowh to cMt the burden of attack upon the execution credito/" The plaintiff, however, must produce the copy or duplicate filed, to ghow that it is in the mme terms as that proved to have been executed;- and must also afford proof that the goods seized by the sheriff are the same as the goods mort- gaged. If the mortgage moneys have been satisfied, the mortgagee cannot then, as plaintiff in an issue, rely on his own bare legal title." Where the plaintiff claims under a bill of sale from a sheriff the bill of sale though it may not, per w, be evid- ence of the title of the claimant, is so, coupled with the evidence of the seizure by the sheriff before the execution of the bill of sale.** The fact that a chattel mortgagee, claiming goods taken in execution as the goods of his .mortgagor, subsequently directs the sheriff to sell under the execution, d^s not necessanly amount to a waiver of his claim under his mort- gage.** When the title to goods purchased from a chattel mort- gagee under the power in his mortgagee is contested, on an interpleader issue, by an execution creditor of the mort- gagor the purchaser is entitled to succeed, when it appears that the seizure was made after he acquired his title.*' A chattel mortgagee of crops to be grown, cannot prevail over a ^rior execution in the hands of the sheriff, against the goods of the mortgagor.** Qnertions of mi«tae.-A mistake appearing on the face of an issue, as to the statute under which it is directed, does not invalidate the issue.** Where one of the plaintiffs in an issue was misnamed, being named Robert Mar Fisher Bmmott V Marchant (1878). 3 Q. B. D. 555 Wafertnn v. Baker (1868). 17 L. T N S 404 »Horuid,e V. Cooper (1858): 27 L. J Ex. lu - fiT!::?'*'' I- M^riden (1883), 3 Ont. 413. ' "oi.if'^ ''• ^r""*^ <*^>' 24 Ont. 147. Clifford y. Logan (is^), g ^an. 423. Sannderson ▼. Perrin (1870). 22 L. T. N S 410 BVIOBNCK AT TITE TRIAL. 285 iMtead Of Robert Mar Shaw, it wa. held that such yariance tJty^hich could be shown at the trial and there amended " Where it is necessary to amend an issue, by reason of Z'^TI'T' 'PP^?^ '"^ '^ *^" ?'•''?«' P~««<^« »eems to be, that the party desiring the amendment must go back to chambers and should not apply at the trial." The 'ssuc as directed by the interpleader order cannot be amended at the trial" Where the plaintiff delivered an issue which contamed mi error, he was allowed to amend it nunc pro tunc on payment of costs." The jn^.-The usual practice is to provide in the inter- P^ader order whether the issue is to berried with or ^th- When there are two claimants disputing the ritrhts of an execution creditor, one being a purchaser iom the olr Jo J. ' ".l""*^ ^'r'"^"' °"^y °^ ^ ''^' ^ be allowed to address the jury for them both ' a third par^ clamung has been substituted for the defen. hTkl "1 ^'°°**' thereafter an equitable one, triable "ah^^f ^- ^^^ (*892). 8 Man. 137. man. 9 o. C. ^ 3^ ^^' ^^'' C«"»P«>e» r. Wawer- " K!L??8?- ''""°' ^'««^' 2 Chy. Chamb. Out. 233. A.e:.|3:/;?'„^„„r(WlS[^ =^^. * ^- * L. 721; Gayton t Espin (1859). 1 P. & p. 722 f!Sl CHAPTER XIII. COSTS AND CHAB0K8. Applioant fets bis ooitf.— The practice in Courts of Equity, from the earliest period, both in England and America, has always been to allow a stakeholder, who has made out a case for interpleader, his costs of the interpleader suit, as well as his costs of any prdceedings which the claim> ants may have brought against him, and all these he is en- titled to deduct from the fund in his hands before he pays it into court, or otherwise disposes of it under the direction of the court. He has a lien for his costs on the fund or other property, and is not to be obliged to take his chance of getting his costs from the claimant, against whom the court may ultimately decide. The successful claimant event- ually gets these costs back, as well as his own costs, from the claimant, who either cannot support his claim, or who fails to appear.' The applicant will be entitled to his costs .,-,0.,°*^^'^ ^- ^*y <^'"*>' 1 ^'c''' 291; Aldrlch v. ThompMn (1787), 2 Brown Ch. C. 149; Hodgm v. Smith (1787), 1 Cox, 857; ?2Jr,^°„ ^ Hardcastle (1791), 2 Cox, 278; Edensor v. Roberta (1«91), 2 Cox, 280; Aldrldge ▼. Meaner (1801), 6 Ves. Jan. 418; .92y^?"*J- WilHnms (1803), 9 Ve«, Jnn. 107; Dnnlop v. Bubbard (1812), 19 Ves. Jnn. 305; Mason ▼. Hamilton (1831), 5 Sim. 21; Campbell v. Solomons (1823), 1 Sim. & S. 462; Glynn v. Locke (1842), 3 Dr. & War. 24; Symes v. Magnay (1885). 20 Beav. 47; I^ing V. Zeden (1874), 9 L. R. Ch. App. 736; Wells v. Hews (1870), 24 Gr. (Ont.) 131; Balchen v. Crawford (1844>. 1 Sandf CI- N Y. 380; Oppenheim v. Leo Wolf (1846), 3 Sandf. Ch. N. Y. 571; Richards v. Salter (1822). 6 Johns Ch. N. Y. 445; Sprine v. S. C. Ins. Coy. (1823). 8 Wheat. U. S. 268; AtTcinson t. Manks (1823). 1 Cow. N. Y. 6t)l; Canfleld v. Morgan (1824), Hopk. N. Y. 256; Thomson v. Ebbets (1824). Hopk. N. Y. 272; Aymer t. Ganlt a830). 2 Paijre, N. Y. 284; Badean v. Rogers a830), 2 Paige, N. Y. 209; 00818 AND CHAROn. S87 in an interplesder •nit, notwithttanding the fact, that he might haTe brought the parties together in prior garnishee procedings, if it appears that an injunction is necesutfr for his protection.* Wk«B rdief aa to part of fBiid.-If one claimant cUums a larger sum than the stakeholder admits or pays into court, such claimant will be allowed to proceed with an action to recover the balance, and the question of costs as between the stakeholder and this claimant will be reserved untU the determination of such action, or until further order. But if the claimant does not elect to proceed with an action for the balance, then the costs of the stakeholder will be ordered out of the fund.* Where an insurance company flled a bill in respect of two Ufe policies, and was held entitled to relief as to one and not as to the other, the bill was dismissed with costs, in respect of one policy, to the defendant entitled, and allowed with costs in respect of the second policy. The costs pay- able by the plaintiff were set off against the costs to be received by him.* Where eoata orerlooked in paying orer fund.— Where a stakeholder paid the whole fund into court, without asking or deducting his charges, and afterwards sought to have the fund out again, so that he might deduct his charges, an order was made, in Missouri, that he be allowed to appear UancheBter v. Sdrnwii (1853). 2 R. I, 415: Coii«)clated Pr»«b». A" S^J; ^^P'** <*«»>• 23 Conn. 644; FarieJT Bl^ (iSS 9on Lt^' Kahway Sarings «<,<-. v. Drake (1874), 25 N J En (18W) 42 T^L^/^'^^P-.^.^^**'"' P'^'^fi'^ ^«n'b«'- Co. v. Lan" 100 ». x^:, .*•"• ^^ ^**"">; Keller v. BadinK (1896) ft* III Ann In„/« 'i . ]: "^U ^* ''■™« ™'e preTaHs in the Scotch action nf mnltplepoindin^ Hepburn v. Rex (18»4). Ct. ofl^„ion S r 1024; see also Dill y. Ricardo (1885), Ct of Session 12 RflO?: Pollart y. Galloway (1881), Ct. of 8e;aion, 9 R 21 ' . S*"'?. ^- *''"■» <*'^5). 2 Man. 97. City Bank V. Banfn (1831). 2 Pai^e N. Y. 570. * Glynn v. Locke (1842). 3 Dr. & War. 24. I 288 THE LAW OF INTERPLEADER. at the trial to show whether or not he should have an allow- r.nce.* Under Interpleader Btatutea.— The English Interpleader Act of 1831 provided, that on applications by stakeholders, the court might make such orders as to costs as might appear to be just and reasonable. In the first decisions under this statute, the rule in equity as to costs was adopted, and has been followed ever since, namely, that where the stakeholder has acted fairly with respect to the fund in dispute, he will be entitled in the first instance to his costs out of it; or to a lien for them upon the goods or chattels, if the subject in dispute is other than money. These costs, the ultimately unsuccessful claimant, must repay to the claimant who establishes his title. It is just and reasonable that the stakeholder should be protected, and he will be entitled to his lien, although the successfi^l claimant may object that he will not be able to collect the costs deducted, by reason of the insolvency of the unsuccessful claimant who is ordered to repay them. Both claimants must keep the stakeholder harmless.* Lien for ooitt.— When the subject matter consists of chattels, the strict order which the stakeholder is entitled to, is, that he shall receive his costs before giving up the property in his hands. It is usual to provide, that either claimant may in the first instance have the property, upon giving security and paying the stakeholder's costs within a 'Re pregg'. AMlirnment, Pee t. Wolfe (1888), 74 Mo. App. 88. \\ V' ^J^^^- ^^'' ^***' *• ^^^ o' England (1834), 2 DoWL 728; Reeve, y^ Btrraud (1889), 7 Scott. 28J; Pitcher. 1 K^ney„(1888. 4 Blng. N. O. 721; Attenborough t. London «...**•. Katharine. Dock Coy. (1878). S C. P. D. 4S0: GUle.pio ^ v. Kobertwn (1878), 14 U. O. L. J. 28; M'Elheran v. London (IKW). 22 U. C. L. J. 28. 11 Ont. Pr. 181; Shaw v. Weldon (1884), 2 New Zealafid L. R. 896; Arrolt v. Hudaou Bay Coy (1880), 8 Man. S29. In an early ca.e, where a atake- ftoldpr had been offered an indemnity and had refuMd It. ha wa. not allowed hi. coato. Olad.tone v. White (1886), 1 Hodge.. 880. ITndrr the Englirii Act a p«nK>n entitled to coata under an Inter- pleader Order, wa. not bonnd to take out execution under that Act, but might make the order a rule of Court and take out execn- COSTS AND CUARQE8. 289 certain tune, failing which, the latter sells the goods and pays the proceeds into court, first deducting his costs charges and expenses of sale. In one case, where all tht parties were before the court, the unsuccessful claimant wac ordered to pay at once the stakeholder's costs, and the chronometer which was in question was delivered to the successful claimant.' tian^^?^. '° ^."^'f ""''' ""^''^ '*™'*« '^ »"»«*"'« j"risdic- been held, that where a stakeholder, who has bin sued applies for relief to the master, the master has only powe^ thTcost's 711 T ^°*^?'^'»'^" "^PP'-ation, and not'over .H?**^^"" *^^*^ •t«keholder.-The stakeholder is en- titled to his costs of the interpleader proceeding whether he 1 h" ^"^/J.^^'V' »°^ -hen one or both o'f the c aim! ants have sued him, he is also entitled, out of the fund, to the costs of one or both actions as the ca.c may be,«« ind fZ ^.T"*^ '"*' ''"'* ^^' *™°"°t claimed, to deduct from It the amount of his taxed costs up to that period the Je^r^^r* TT v^ fT'^ y-mt^^l.,n fan big rt served. In New York the applicant must pay the costs of the action against him up to the time he interpleads." Kn». Order. 54 Rule 12 (1). -ri!^t" '• "•'Jdox (1883). 12 Q. B. D. 100 -Clench T. Dooley (1887). 86 L. T. 1!S JoTel\l-8«)!'B"j„?'&7''" ' » «»''•• ««> ol.|m«nt who f«llTbut no STtT^of thr-cH^n '.''"r'"" '^^ ♦"" ^itire-irdV^'tt^ t rule nnd niadr e«ch pwt^ o^V hi- ^^ d*P«rted from the usmi and the .Uk* wider t^^lJuoi^tTLr^*' "' *''l >»t«n>le.der. mwit of the Internle. -r Tfmil- ff*'**" "P *" *">• conmence- "Seark r. Matthews (1888). W N iTftio if^^',?"^ 19 290 THE LAW OF INTERPLEADER. SherilTi ooits. — Immediately after the Interpleader Act became law in England in 1831, a rule was laid down, that the sheriff should pay his own costs of coming to the court, no matter how meritorious and proper his conduct might have been. The dignity of his of&ce was thought a suffi- cient recompense for large pecuniary loss. It was said, that the Act, passed for his relief, conferred sufficient bene- fit upon him by allowing him to interplead, and so to relieve himself of a liability cast upon him by law. This rule was adopted, notwithstanding the fact, that the statute said dis- tinctly that the costs should be in the discretion of the court.** The rule was the same when a coroner inter- pleaded.*^ But the sheriff was allowed his costs, if it ap- peared that the conduct of the parties had been vexatious or grossly improper,** and was always allowed those incurred after the date of the interpleadl^r order, including the costs of a final application.** In course of time, the English Courts began to look with a more lenient eye upon the sheriff, and taking ad- vantage of the discretion allowed by the interpleader stat- utes, it became the practice to direct the unsuccessful party to pay the sheriff's costs. It has been said in Ireland, that "Barker ▼. DyneB (1832), 1 Dowl. 169; Bowdler v. Smith (1832), 1 Dowl. 417; Field v. Cope (1832), 1 Dowl. 667; Perkins v. Burton (1833), 2 Dowl. 108; Armitage t. Foster (1836), 1 H. & W. 208; Scales v. Sargeson (1830), 4 Dowl. 231; West t. Rotherham (1836), 2 Bing. N. C. 627; Beswick v. Thomas (1837), 5 Dowl. 458; Staley t. Bedwell (1839), 10 Ad. & Ell. 145; Ball t. Bruen (1848), Bl. D. ft O. 283; Alexander t. Handy (1848), 11 Ir. L. B. 328; Deehan y. Lynch (1850), 2 Ir. Jar. O. S. 15; Cotton v. Cregan (1856). 4 Ir. C. L. R. 250; McCann v. Birch (1878). 2 L. R. Ir. 500: McCollum v. Kerr (1862). 8 U. C. L. J. O. S. 71. In the Court of Excheauer the sheriff was allowed his costs: Oram v. Sheldon (1835), 3 Dowl. 640; Gilhooly v. Grogan (1853). 6 Ir. Jur. O. S. 244; and in a few other cases the rule was departed from: Towgood V. Morgan (1832), 8 Tyrw. 52 note; Burke v. D'Arcy (1847), 9 Ir. L. R. 287; Scully y. Figgis (1848), 18 Ir. L. R. 156; Fitzgerald y. Goates (1849), 1 Ir. Jar. O. S. 64; Campbell y. Sweenr (1873). 7 Ir. L. T. & Sol. J. 684. " Phibbs y. Phibbs (1861). 3 Ir. Jur. O. S. 96. >*Cox y. Fenn (1838), 7 Dowl. 60; Thompson y Sheddon (1886), 1 Scott, 697; Lewis y. Eicke (1834). 2 Dowl. 887. " Bryant y. Ifcey (1832), 1 Dowl. 428; Scale* y. Sargeaon (1836), 4 Dowl. 231; O'Callaghan t. Barnard (1830), 3 Law Bee. O. 8. 272; McGoUum y. Kerr (1862), 8 U. G. L. J. O. B. 71. COSTS AND CHARGE8L 291 both the makers of the law and its administrators, have at length begun to realize tl^^t modern sheriiTs are generally poor men, to whom the dignity is a burden, and in recent decisions they have been more liberally dealt with »» This follows the practice of the Court of Chancery, where it was held, that the sheriff having done his duty was entitled to his costs out of the fund, and if that should be insufficient to an order upon the claimants for the deficiency.*' ' By 1883, the practice had become quite settled, and in that year it was decided as follows : When an order is made on the application of a sheriff, he is entitled to his costs from the period at which he has been called into interplead- ing action; as against an unsuccessful claimant, to costs from the time of notice of the claim, or from the time of sale, whichever is first; and when a sheriff is ordered to with- draw, he IS entitled to costs as against the execution credi- tor from the time at which the latter authorized the carry- ing on of the interpleader proceedings, which is generally from the return of the interpleader summons." Statutory provision in Ontario.— In Ontario, in 18i6, the legislature made provision for the payment of the sheriff's costs m interpleader as a matter of right. After an issue has been directed to be tried, the sheriff may tax his costs, and serve a copy of the certificate of taxation upon each of the parties to the issue. The successful party must then tax such costs as part of his costs of the cause, and upon receipt of them, pay them over to the sheriff, unless he has been previously made. If the successful party refuse to do this, the sheriff may then obtain an order, that the success- ful party shall himself pay them. If the parties to the issue compromise the matter, then the sheriff is paid by the ex- ecution creditor.** This provision has also been adopted in Manitoba, and when a claimant is barred, without the trial of an issue, the r. ^S^SJiri'lr^R'm"'' ^'''"' '" ^''^- °'^- 21«: Malone "Child T. Mann (1867), L. R. 3 Bq. 80(1. -Sn"t Rule^llM."''" ^^^^' ^' ^- "®' ^® ^- »• ^- " '^- 292 THE LAW OF INTERPLEADER. proper order is, 'that the sheriff's costs he taxed to him, and an allocatur served on the execution creditor, that the latter add them to his costs, and upon receipt of them from the claimant, pay them over to the sheriff.' The sheriff is not entitled to them in the first instance from the execu- tion creditor.** In Ontario since 1897, when an issue is directed to be tried, the costs of the sheriff incurred in consequence of the adverse claim, are made a first lien or charge upon the money or goods which may be found to be applicable upon the ex- ecution.** This in effect makes the execution creditor, who puts the sheriff in motion, always liable for his costs, but the creditor has his remedy over against the unsuccessful claimant. When execution oredi-lor abandons. — It was formerly the rule, when a sheriff had seized Hn obedience to the writ, and without any special instructions from the execution creditor, that the latter was not bound to determine what course he should adopt until the sheriff had interpleaded, and thus af- forded him an opportunity of examining an afiBdavit from the claimant. The execution creditor could then withdraw and decline to take an issue, and was not liable to pay the costs of .he sheriff. But where special instructions had been given to the sheriff to seize particular goods, the execution creditor could not then abandon after interpleader proceed- ings had been instituted without paying the sheriff's costs, nor was it necessary that special instructions should have been given in contemplation of an adverse claim. If special instructions were denied the sheriff was assumed to have acted 1 nder the writ.** Where a sheriff had seized without instructions in Mani- toba, and the solicitor for the execution creditor wrote, after a claim had been made, intimating that the sheriff was en- titled to interplead, and suggesting that he had better con- ** Patterson v. Kennedy (1884). 2 Man. 63. "Rule 1120 (1). _ , » Glaaler v. Cook (1886). 5 N. & M. 680; 0. v. D. (1888), W. N. TOT; ProBser v. MalHngon (1884), 28 Sol. J. ppa. 411, 616; Vanstaden T. Vanataden ' (1884). 10 Ont. Pr. 428; Canadian Bank of " — merce v. Taaker (1880), 8 Ont. Pr. 8S1. Com- COSTS AND CHARQES. 293 suit his solicitor; upon the sheriff interpleading the execu- tion creditor abandoned, and he was allowed to do so with- out paying the sheriff's costs." But where a creditor know- ing of a claim to be made, directed the sheriff to interplead, and on the return of the motion obtained an enlargement to enable him to examine the claimant, and then abandoned, he was directed to pay the sheriff's costs." Creditor mutt inrtruot iheriff.— As a result of this prac- tice the sheriff often found himself in a dilemma; having seized, and a claim having been made the execution creditor would frequently refuse to say whether he intended to admit or to dispute the claimant's title. The sheriff was thus obliged to interplead, and upon the creditor abandoning, had to pay his own costs. To clear the sheriff's course in such cases, it was enacted in England in 1889, that there- after, upon a claim being made, the execution creditor should at the request of the sheriff admit or dispute the claim. If he admitted the title of the claimant he was only liable to the sheriff for fees and expenses incurred prior to the re- ceipt of the notice admitting the claim. If on the other hand the execution creditor did not in due time admit or dispute the claim, and an interpleader went on, the court might make all such orders as to costs, fees, charges and expenses as might be just and reasonable." The reasonable order, if the execution creditor abandons after proceedings have been instituted, is to make him liable for all costs down to the time he abandons, because the interpleader would have been unnecessary had he admitted the claim in the first in- stance. These English Rules were adopted in Ontario in 1893.»« When ezeontion creditor faili to appear.— If an execu- tion creditor fails to appear after he has specially directed a seizure, or after he has requested the sheriff to interplead, or when he appears and subsequently consents to the sheriff's Blake V. Manitoba Milling Coy. (1891), 8 Man. - Stephens y. Ropers (1889), 6 Man. 298. " En«. Order 67. Rules 16 and 16 A. "Ont Rules (1887) 1115 and 1116 427. 294 THE LAW OF INTERPLEADER. withdrawal, as well as where, after a trial, the issue has been decided against him, he must pay the sheriff's costs of the interpleader application.** Where the claimant suc- ceeds all the execution creditors who take part in the issue arc liable for the sheriff's costs." In addition to his costs of the interpleader application, the sheriff is also entitled, where he has acted properly, to his costs of any action which the claimant miy have brought against him, as where a claimant hastily followed up his notice with an action, and the sheriff applied promptly for relief by interpleader." But the sheriff will have to pay the costs of the claimant's action, if he might have inter- pleaded before the action was brought.** If the claimant fail to R7>p«ar.~If the claimant fail to appear upon the return of the interpleader application, or if he appear and do nothing to Substantiate his claim, and is barred, he must pay the sheriff's costs.** He will also be liable for such costs, if, after the trial of an issue, it turns out that he is the unsuccessful party.** But a sticcessful claimant will never be called upon to pay the sheriff's costs.*^ Execution creditor'! liability to iherilf.— In addition to the rule that the party who fails must pay the sheriff's costs, whether he be the claimant or the execution creditor, there is a further practice under which the sheriff may in all cases ask his costs at once from the execution creditor, as the party who has put him in motion.** It is a reasonable rule that the sheriff is entitled to be made safe, and he has a right to say to the person who puts him in motion, pay me the amount of my costs. The strict form of order "BraiDBdcii v. Parker (1885), 1 Times Rep. 510; Carter v. Stewart (1877), 7 Ont. Pr. 85; Manitoba v. Routley (1886), 3 Man. 296; Bank v. Emerson (1878). 7 W. N. C. (Pa.) 392. •• Brown v. Portage La Prairie Mfg. Co. (1885), 3 Man. 245. "Carter v. Stewart (1877), 7 Ont. Pr. 85; Macdonald v. Great N. W. Central Ry. Co. (1894), 10 Man. 83. "Booth V. Preston (1860). 8 Ont Pr. 90. "Towgood V. Morgan (1832), 8 Tyrw. 62 note; Cochrane v. McFarlane (1888), 6 Man. 120; Showers v. Bull (1888). 14 Victoria L. R. 219. •• Sparle v. Mntthews (1883), W. N. 176. 10 Q. B. 77, Mte. "Massey r.,Gnadry (1887), 4 Man. 22D. "Hale V. Saloon Omnibnr Co. (1869), 4 Drew. p. 600. COSTS AND CHARGES. 295 therefore, when a claimant fails, is, that the costs shall he paid in the first instance hy the execution creditor to the sheriff, and that the execution creditor shall have his remedy for them over against the unsuccessful claimant Thi' is the strict order which the sheriff is entitled to, although often he does not ask for it, hut if the sheriff prefers the liability of the execution creditor he is entitled to it »• The words 'make such other orders as may appear just accord- ing to the circumstances' are wide enough to enable the court to direct in the original interpleader order, that the sheriffs costs shall be paid by the execution creditor, thus giving the sheriff a summary method of enforcing pajment." In Ireland the same principle is put in another way when It 18 said, that an interpleader order places the sheriff' in the position of a plaintiff who has been held entitled to maintain a bill of interpleader, and who must therefore be indemnified .it 5"* j^«t«°^e by the property, or by the person who establishes his right to it, against his costs. This rule ap- plies to all costs incurred in reference to the .ubject matter, either before or after the order.** After an interpleader order had been made directing an issue, the debtor's landlord made a claim for rent which the execution creditor did not meet, and the sheriff went out of possession. An order was then made discharging the issue, and directing the execution creditor to pay the sheriff's costs, half of which were to be repaid by the claimant." Where an issue had been directed and the claimant, who was plaintiff, failed to bring it on for trial, an order was made barring the claimant, and the execution creditor was ordered to pay the sheriff's costs." Where the result of the trial of an issue showed that the execution creditor had succeeded as to part of the goods, . . ^K^**^/- Z**"" <1®^>- 1 Q- B. ^7: Smith v. Darlow fl8R4» iO Chy, Dlr. 605; Todd t. M'Keerir ( iwat Q Tr w ^uTrtT A „ ' Bowerma:: (1900). 19 Ont ^.^ ^ ^^' ^ ''* "• ^' ^■" ^• -Ashdown V. Nash (1886). 3 Man. 37. Malone r. Rom (1900). 2 Ir. ». 586. -Lawson T. Carter (1884), W. N. 6. -Bantock v. Cattley (1898), Ont. Maater in Chambew. nvt reported. S«e also Stern ▼. Tegner (1898). 1 Q. B. 87. • i! i! m tiHt THE LAW OF INTBKPLEAOER. and the claimant as to the balance, and no costs of the issue were given to either party, an order was made at the re- quest of the sherifiF, directing that his costs should be paid by the execution creditor, and that one-half o' these should be repaid by the claimant.** And where an ex-'cution credi- tor was plaintiff and succeeded, each party was ordered to pay his own costs, except that the sheriff's costs were to be paid by the execution creditor in the first instance, with the right of recovering them from the claimant.** Liability of ezeontion debtor. — Sometimes the execu- tion debtor has been ordered to pay the costs of the sheriff and other parties. Thus, after an issue had been directed between the execution creditor and a third party, the execu- tion debtor appealed in the action and gave security, but eventually the execution creditor succeeded on the appeal and the debtor paid the judgment. It was held that the execution creditor and the execution debtor should each pay their own costs of the interpleader, and one moiety each of the costs of the sheriff and claimant.*' But as a general rule the sheriff cannot look to the execution debtor for the interpleader costs.*^ Shareholder may loae hia ootts. — As a person entitled to relief by way of interpleader takes his costs out of the fund in his hands, he should be cautious to avoid burdening the fund to an extent beyond what his own protection may re- quire, and being sure of his costs the court should be most careful not to allow him to run them up unnecessarily.** If, therefore, a stakeholder ha« acted improperly, as by delaying his application, and awaiting the suit of one of the claimants, but has nevertheless been allowed to interplead, he will be deprived of his costs of the interpleader suit or application, and in addition may be ordered to pay the costs " Ontario SUver Co. v. Tasker (1893). 15 Ont. Pr. 180. "McCready v. YanValkenburg (1883), Ont. McMahon, J., not reported. ••McLaren v. Canada Cei^ral By. Co. (1884), 10 Ont. Pr. 828. «- Hairmond v. Navin (1841). 1 Powl. N. 8. 861. See also Levy V. Davipa (1886), 12 Ont. Pr. 83. ™ ., „ «— *» Scottish Un'on Ins. Co. v. Steele (1884), 8 L. T. N. 8. 677; Crawford v. Fisher (1840), 1 Hare. 486. COSTS AND CHARGES. 297 of the action which the successl il claimant has commenced, down to the time at which the interpleader order or decree was made. Vexatious conduct, or culpable negligence, on the part of the applicant in the prosecution of his suit, whereby needless expense is occasioned, ought to be visited in all cases with costs against him.*» If the proceedings are irregular, in that the stakeholder dees not pay the fund into court, he will be deprived of his costs out of the fund;»» and if he proceeds with an inter- pleader suit, after one claimant has withdrawn, he will not be allowed any costs incurred after the 'notice of with- drawal,'* Stakeholder may have to pay corti.— If a person seeking relief fail to make out a case for interpleading his applica- tion or suit will be dimissed with costs.'^* The court will not decree the costs to be paid by the claimant whose mis- conduct caused the suit." And if a defendant, instead of demurring to a bill of interpleader bad on its face, puts in an answer, and goes on to a hearing, on a dismissal of the bill, he can only get costs up to the time he might have de- murred.** Corts payable by iheriff.— As a general rule a sheriff will not be called upon to pay the costs of an interpleader appli- cation, unless it is shown that he has been guilty of improper conduct." A claimant who has succeeded cannot therefore ask costs against the sheriff." Nor is the sheriff liable to Tr^ linK^T^-J- ^''y- 137: Searle v. Mathews (1883). W. N. rfu ui.r" iJ^- '' *<"*: ClouKher v. Scooncs (1885). 3 Man. 238- « Mth. k "" ^^^"^^ " ^'*- ^' ^''^"«"" v.''wh:te TlS^). "Gardiner Savinge Inst. v. Emerson (1898), 91 Me. 535. "Symes v. JJagmay (1855), 20 Beav. 47 pTf^r. n^!%*^^™^'o*i ^""•*' O"*' ^■' M«r.l»aut8 Bank y. Y. 109. The same rule exists in Scotch miiltiplepomding. Mac- ken«e V. Sntherland (1806), Ct. of Session, 22 R 233 "Cochrane v. O'Brien (1845), 8 Ir. Eq. R. 241 »♦ Shaw V. Co«tor (1840), 9 Paige, N. Y 339 ' "Bland v. Delano (1888), 6 Dowl. 283. "Moriand v. Chitty (1883), 1 Dowl. 520. 298 THX LAW OF INTERPLIADEB. the execution creditor when the claimant does not appear." And where an execution creditor intends to relinquish, he need not appear on the interpleader application, and if he do he is not entitled to costs.** But, if a sheriff comes to the court under circumstances which do not entitle him to relief, his application will be dismissed with costs, as where he has given up part of the goods." It will generally be the case, that he is liable for the costs of only one of the parties. Thus, if relief is re- fused because the claim is clearly bad, as where the claimant alleged title under a bill of sale executed after the date of the seizure, the sheriff will be liable for the costs of the execution creditor only.** Where a sheriff acting under the writ, sei2ed goods in the possession of the claimant, without special instructions from the creditor, and relief by iiiterpleader was not granted, he was directed to pay the claimant's costs, but not thcso of the execution creditor, where it appeared that the latter did not repudiate the seizure.** And where, pending an interpleader application, the sheriff withdrew at the request of the execution creditor, and did not notify the claimant, hs he should have done, but brought both parties before the court, he was ordered to pay the costs of the claimant, but not those of the execu- tion creditor; as also when his application was refused be- cause he had acted in the interests of the execution creditor and under his direction.** The sheriff will be directed to pay the costs of the claim- ant's action, if he might have interpleaded before the action was commenced.** "Philby v. Ikey (1833), 2 Dowl. 222. "Glasler v. Cook (1835), 5 N. ft M. 680. "Bralne v. Hunt (1834). 2 Dowl. 391. " Be Sheriff of Oxon (1837), 6 Dowl. 136; Monitor Plow Works T. Allen (1877), Man. Temp. Wood, 165. "Bishop V. Hinxman (1833), 2 Dowl. 166. "Flynn v. Cooney (1889), 18 Ont. Pr. 821; Barleigh v. Eng- land (1838). 1 Arnold. 106i " Booth v. Preston (1860), 3 Ont. Pr. 90. OOSn AND CHARGES. 299 If a sheri£F call a landlord before the court along with the execution creditor and claimant, when there is no dis- pute as to the rent, he will have to pay the landlord's costs of appearing.** Where a sheriff applied for relief, but it appeared that an attachment had been already obtained against him for not returning the writ, the court would only grant his appli- cation upon the terms of his pa' ing the costs of the attach- ment.** Corta of further prooeedingi.— As a general rule, after a person has obtained his interpleader order or decree, it is ' not necessary for him to appear before the court again, and if he do so of his own motion, as upon an appeal, or on a final motion, he will not be awarded costs. If he is noti- fied by one of the parties, such party may have to pay his costs of appearing. Where an interpleader order directed that a sheriff's costs should be paid by the claimant who was barred, and the claimant appealed, asking for a reversal of the order, and that the execution creditor should pay the sheriff, it was held that the sheriff was wrong in attending, as there was no suggestion that if the appeal were allowed the execution creditor would not be able to pay, and he was refused his costs." But in another case, where it appeared that the sheriff would lose his costs, if the appeal were al- lowed, it was held that he had such an interest in the result as entitled him to attend, and he was allowed his costs of appearing on the appeal.*^ It is not necessary for the successful party to notify the sheriff of the final motion to bar the other party and for costs. If he do so, he will have to pay the sheriff's costs of appearing, without recourse to the unsuccessful party." If, however, a matter affecting the sheriff's own costs is raised' •• aarke v. Lord (1833), 2 Dowl. 55. "Alemore v. Adeane (1835), 3 Dowl. 498 "Ex parte Webster in re Morris (1882), 22 Chy. Div. 136. JTrickett T. Girdlestone (1807). 103 Law Times Jr. 81; KU- patrick r. GlUlam (1890). 16 Vict. L. B. 6t3. -O'Brien t. Bull (1883), 9 Ont. Pr. 494. I 800 THE LAW OP INTERPLEADER. he should be served with notice of the final order, but beyond that in ordinary cases, he has no interest in the proceedings, because the order provides how his costs shall be recovered! If he is needlessly served, he may be justified in attending, and in such case his costs will be borne by the party who brings him there.** Cofts between <^«iauuits.— As between the two claimants, the rule in equity is, that the unsuccessful party will be ordered to pay the successful claimant's costs of the inter- pleader suit, of the action or issue directed, and also to make * good to him the costs and charges which have been deducted from the fund by the stakeholder. The principle is, that the claimant who improperly raises the double claim must pay the costs occasioned by it.^* And a claimant who does not appear, will be liable for these same costs and charges, just as though he had appeared "and was barred." If there- is no fund to pay into court, the claimant in the wronf^ must pay the costs of the stakeholder and of the innocent claimant." With regard to costs between the claimants in proceed- ings under the Interpleader Acts, the course of practice has been to follow the ml - of equity," and to order the un- successful claimant to - to the successful party, the amount deducted from the funa, or proceeds by the stakeholder for his costs and charges, as well as the successful claimant's "Orny t. Alexander (1884). 10 Ont Pr. 858. -.JHFV^ ^- ^*y ^^^^>' 1 ^'*- 291: DowBon v. Hardcartle (1701). 2 Cox, 278; Edenaor t. Roberta (1791), 2 Cox. 280; Cowtan V. WilliamH (1803). 9 Ves. Jnn. 107; MartiniuH v. Helmnth (1815). 2 Vea. ft B. 412: Symea v. Magnay (1855), 20 Beav. 47: Lain? v. Zeden (1874), 9 L. R. Ch. App. 736; Richarda v Salter (1822), 6 John Ch. N. Y. 445; Canfield v. Morgan (1824). 1 Hopk. N Y 256- Mancheater t. Stimson (1853), 2 B. I. 416; Farley v. Blood (1 i.54). 80 N. H. 364; Miller v. Watts (1864), 4 Duer. N. Y. 203; Miller V. DePeyater (1885), 1 Abb. Ch. N. Y. 234. But eee emtra Gardiner Savings Inst. v. Emerson (1898), 91 Me. 333. "Hodges V. Smith (1787), 1 Cox. 357; Wells v. Hews (1876). 24 Gr. Ont. 131. "Mason v. Hamilton (1831), 5 Sim. 21; Aldridge v. Meaner (1801). 6 Ves. Jun. 418. "Melville v..Smark (1841), 3 M. « G. 57. COSTS AND CBAROES. 801 co«t» of the interpleader application, of the issue, and of any suhseqnent proceedings.** When opposing claiman.s of personal property, subject to distribution, interplead each other, the administrator not being a party to the litigation, costs will not be allowed to the claimants out of the fund.** In Pennsylvania, upon interpleader orer a fund paid into court by a benefit association, the costs of the whole litiga- tion were taken out of the fund and the balance awarded to the rightful claimant.** When interpleader order re«>inded.— Where an inter- pleader order directed an issue, and reserved the costs, and the defendant in the issue obtained an order for the dis- charge of the interpleader order unless the plaintiff should proceed in a certain time, which he failed to do, it was held that the order discharging the interpleader order did not discharge it entirely, and that jurisdiction still remained under which an order could be made that the defaulting party pay the costs." When • claimuit does not appear.— Under the English Interpleader Act as first enacted, and up to the codification of the practice in 1883, when it was amended, if a claimant did not appear on a stakeholder's application, the -ourt was empowered to order costs between the stakeholder and the claimant who had sued him. During this period a claimant could not be ordered to pay costs when he did not appear, iim^T'^ll %'"/^^>' l^r^- «S= D«" -' Mackintosh ifSr^L 1^' ^''" ^- Blethyn 0835). 1 Tyr. & Granger. rand '183^. J Scott, 281; Began y. Jones (1841), 5 Jnr. 607- Jonea uiueaple ▼. Robertaon (1878), 14 U. C L J 28- ClmirhPi- tr J^"^^^^' ' ''^•.^' ^""'* v.Hudi;n'il'yCo%"^)/3 "•^' ^'"'V- ^*''***'' <^^>' 2 New Zealand L. R. 395. IrJf'^t "' ^«^?'!!,^**^^' « Wia. 107; Gardiner Savinga tost. T. Emerw>n (1888), 91 Me. 635. O. pi!'*2TO ^*"**"' Masonic Aid Aawciation v. Marshall, 10 C. " Wicka' T. Wood a878). 26 W. B. 680. SOS THE LAW OP INTERPLEADER If-*' II or when he appeared merely to object to an irregularity." In Manitoba, where a claimant does not appear, or appears and abandons, no costs are awarded against him, but if he appear and asserts a claim. Which he fails to prove or sup- port, he must pay costs.^* SuoceMful ezeoution creditor.— The successful execution creditor in a sheriflf's case is entitled to his costs from the claimant, as where the latter has failed to appear, or has given notice that he will not proceed, or has failed after the issue has been tried out." The costs of a successful execution creditor should come out of the proceeds of the goods, if they cannot be collected from the claimant, and in an equitable view may be taken to be costs of the execution, for they are a disbursement necessary in working out the execution, and it is by their disbursement that the fund is preserved for all the creditors who are interested.** Claimant in iherifT'i oasei.— The successful claimant in a sheriff's interpleader, is generally entitled to his costs from the execution creditor, as where the latter does not appear, or abandons, or consents to be barred, or is fairly beaten on the trial of. the issue." If there are several issues with different execution creditors, the claimant is entitled to his costs of the interpleader application and final motion from - n^I^^f. ^A ^^'" <^®**)' 8 M & W. 264; Graiebrook t. Pick- ford (1842), 2 Dowl. N. S. 248, 10 M. & W. 2TO; Rooda v. Qun Shot. &c., Coy. (1873), 28 L. T. N. 8. 635. "Armlt V. Hudson Bay Co. (1886), 3 Man. 529. /.ootv^''*!'*'" "' ''"*"» (^882), 1 Dowl. 417; Perklna v. Burton a883), 2 Dowl. 108. S Tyrw. 51; Towgood v. Morgan (1882), 3 Tyrw 62. note; Wllla t. Hopkins (1836). 8 Dowl. 346; Oram t. Sheldon (1886), 3 Dowl. 640; Armltaice t. Foater (1885), 1 H. ft W. 208: Shuttleworth v. Clark (1830), 4 Dowl. 561; Burke v. Burke (1878), 12 Ir. L. T. & Sol. J. 60 and 88. Aa againat a married woman, Nunn v. Tyaon (1901), 17 Times L. B. 624. » Levy V. Daviea (1886), 12 Ont. Pr. 03. But >tt Hammond v. Navin (1841). 1 Dowl. N. S. 861. •Bryant v. Ikey (1833), 1 Dowl. 428; Seaward v. Williams (1883), 1 Dowl. 628; Tolmindon v. Done (1836), 1 H. A W. 123; Reswipk y. Thomas (1837). 6 Dowl. 468; Cnscl v. Pariente (1844), 7 M. & G. 627: Carter v. Stewart (1877), 7 Ont. Pr. 85; Yanatadpn T. Vanstaden (1884). 10 Ont. Pr. 428: Manitoba ft N. W. I»an Coy. v. R nitley (188flK 3 Man. 296; Hyland r. T^nnox (1801). 28 L. R. Ir. 286; Hogaboom r. Gillies (1885), 16 Ont. Pr. 402. COSTS AKD CHARGES. 808 •U the creditors, but the costs of each issue will be borne bv the defendant in that issue.** But where the execution creditor has not specially In- structed the seizure, and abandons upon asce.-taining the nature of the clainumt's rights, he will not be ordered to pay the claimant's costs;" and as will presently appear, the court sometimes, in exercising its discretion, detrives a sue- cessful party of his costs. Corti in discretion of conrt.-It has been hell in some cases, that the costs of interpleader proceedings are awarded to the successful party as a matter of right, that upon the iflsue the costs always follow the verdict." The weight of authonty, however, gives effect to the practice that the costs are to be considered under the Interpleader Statutes, as being wholly within the control or discretion of the court •• Under the English practice the court may, in or for the pur- pose of an interpleading proceeding, make all such orders as to costs as may be just and reasonable." If, after the return day of a sheriff's application, either party withdraws, the court may make all such orders as to costs, fees, charges and expenses as may seem just." Under a New Zealand Statute, with respect to inter- pleader in a magistrate's court, it has been held, that the words "shall adjudicate upon such claim and make such orders between the parties in respect thereof and of the proceedings as to him shall seem fit," confer upon the magis- trate power to award costs." •Brown v. Portage La Prairie Mf». Co. (1885). 3 Man. 245. riSft* « nJl J^"««' ^"•'J'" Bank of Commerce v. Taaker 2?ind fl?fl. Bf/i; ^^'JTf I; M«IUn«)n (1884). 28 Sol. .T. p. • S «w^®' ®''^^ ^- Manitoba Milling Co. (1881). 8 Man 427 * « M Pa. St. 344; Jarrard v. Zoolc, 1 WiM Pn 40(1. 1 w ?i'»*' ^ ^""''y <*^^>' ■* Man. 220; Rlgel-a Appeal (1800) Pa asr ' Haubert y. Beclihaua (1882). 18 W. N. C. "Kng. Order 67. Ral» 15; Ont. Bule 1122. •Bnir. Order 57. Rale 17; Ont. Rule 1116. McTaggart V. Hargreares (1^5), 3 New Zealand L. 8. T7 8(M THE LAW OF INTEBPLEADE3. Snccetrfnl pwrty depriTed of cortfc— Although the general rule is, that the successful party is entitled to his costs, still in some cases the court has exercised its discretion and re- fused to award costs to the successful party upon the trial of the iflsue;»« or what is the same in effect, has ordered each party to pay his own costs." In one case, the claimant a chattel mortgagee having succeeded, the court remarking that no blame seemed to attach to the execution creditor, directed each party to pay his own costs." And it has been held in Ireland, that a successful claimant is not entitled to his costs, if the property seized was so placed that it might reasonably be supposed to belong to the execution debtor.»» Where the claimants settled the matter out of court, the court refused to interfere to compel one claimant to refund, what the other had paid to the sheriff.** Bule in Pewuylvanit.— In , Pennsylvania, notwithstand- ing the general rule that a successful claimant in a sherilf's interpleader is entitled to his costs from the execution credi- tor," it has been held, that the execution creditor is not liable for costs, when he has probable cause for the levy which amounts to more than a mere suspicion, when he has acted in good faith and without oppression and with reason- able cause, or where the goods were found in the possession of the debtor, and the creditor releases them as soon as the true title is disclosed." And where the goods are in the joint possession of the debtor and his wife, there is always itJ^^fV- *i)i°«*°° <^^^' » T. L. B. 642; MaMey v. Oaud^ (itiBT}, 4 Man. 229. MiiH''*'S*""*.7i»,x^''i"'' <^^>' ^ ^<»^'' ^^' »•*« ▼• Manitoba MUUng Coy. (1801). 8 Man. 427; Campbell v. Clereatine (1882), 3 Diat. Rep. Pa. 166^ 140 Pa. St. 46. "Moriand r. Chltty (1888), 1 Dowl. 620. "Phlbba T. Pbibba (1851), 3 Ir. Jur. O. 8. 06. "Dunn T. Bonlton 0888), 2 Chamb. R. 185 (Ont). "CraUr T. BnUdinK Aaaociation (1881), 10 W. N. C. Pa. 206; Hennlnman T. Hood. 5 Kulp. Pa. 2B1; Shellenberger t. Pleiaher, 11 V. O. Pa. 86; Auerbach t. Sartorioaa, 14 C. C. Pa. 620. "Manaleyr. Moore (1874). 1 W. R. C. Pa. 268; Hanbert v. Bechan. (1^. 18 W. N. C. Pa. 827; Renninman t. Hood. 6 Kulp. Pa. 251; Bberljr ▼. Anltman, 12 Lane. Pa. 276; Kaaa t. Britney (1882). 30 L. L Pa. 286; Clearer r. Blaker; 6 Montg Fa. i7B. COSTS AND CHAKOES. 805 ground for a levy, and the costs wiU not be put upon the un«ucce88f ul plaintiff in the execution." But now by^tatS! the^-sta follow the judgment, and are payable^ tZ^ Of aotion against rtiieholder.-On the question, whether Mit, for the hitter's costs of his action, if any, against the stdceholder, and which has been stayed by the inSeader order or decree there is a dearth of authority from Co^ « of Chancery. It has been held in Georgia, that the uZ a ttn toXf r°''* '^ '''"''' ^"'^ '^^ -«*« «^ t'^"^- «?.r/ **> 'J»?^h he IS no party.- Under the English Inter- cessful claimant is liable for such costs as well on thp ^ound that but for his wrongful claim thl wtld\ t been no such action.^ But in a later case it has been held ^at the words of the rule, 'in and for the pu^"he' ust^d ""Vf^' '"'^^ °"^«" " t« ^osTas may bo ofth? rr*."'' °°^y «^"«« jurisdiction over the Yosts llh o:e*l^t"cir-^">' *^' "°* °-' *»>«-«- I^pltr. '''"^'*" "^'^ '"^^ ^''-^^t ''«»i-»t the «n ^L* '^'^"?* ^*"y '^^^'^ '^P ^ notice of claim with an action against the sheriff, and the latter intTrpkad promptly, he will not have to pay the costs of the S" an ^Z T"" **^«»-When each party succeeds on an nterpleader «sue as to part of the goods, there should be the court to detennine, or the court may direct that each C. C.^Tiw.°"^ ^^^' "^ ^' '• P*- ««• «««•«•-«• y- Job... 11 ;;P«. p. L. No. 80 of 1897. M.cdon.ld T. Omt North W-frn (1894). 10 M.n. 88. lUkt. to 306 THE LAW OF INTKRPLEADER. party shall bear his own costs.* Neither is entitled to costs as of course, the award of costs is in the discretion of the court.* When success is divided, the ordinary principle that the plaintiff shall have his general costs, does not apply. The costs should be taxed without reference to which is plaintiff and which defendant. The plaintiff will have his costs in respect to the matters as to which he has succeeded, and the defendant the costs necessary for setting up his case,* Where £183 was claimed, of which the plaintiff m the issue only recovered £50, it was held a wise discretion to order each side to pay their own costs.^ On a sheriff's interpleader, where each party partially succeeded, the claimant was given the general costs of the issue, the costs of the interpl^der application and of the final application, while the execution creditor was allowed to deduct the costs of the issues as to which he succeeded.* A sheriff seized five hordes of which the claimant estab- lished title to two. It was held a reasonable course to direct the master to look at the costs on both sides, to see how much each had incurred in making out his respective claim, and that one set should be balanced against the other. The claimant was allowed his costs prior to the direction of the issue, because it was right and necessary for him to appear, but no costs subsequent to the trial, because by claiming more than he ought, he forced the execution creditor to resist his claim,* / Where a claimant succeeded as to nearly all, he was al- lowed th« costs of the interpleader motion and the general (ISTO), B B. ft Ad. 313; Soames v, Andridge (1841), Dowl. 654. «f«tf «M arg^ (inm.uin. v. Karanagh (1801), 25 Ir. L. T. R. 24; Mc- X !W.Jh nl^^% P^^';» "« Victorian L. R. 608; HarbiMD v. GHleland (1886). 2 C. 0. Pa. 360; Steriing v. Heath (1888). 5 C. C. wAi* li S- f ''"^''SL^''- F'*""*". 11 C. C. Pa. 88; Grover v. »volf. S Knip. Pa. 2S0. • Cronln v rromn (1886), 8 How. Pr. N. 8. (N. T.) 184 • Clifton ▼. Davis (1856). 6 Bll. ft Bl. 302. 25 L, J. Q. B. 344 •Carr v. Edward* (1880). S Powl 20. ' Staley v. Bedwell (1839). 10 Ad. ft Bll, 146. *Lewia V. Holding (1841). 2 M, ft O. 875. 008TB AND CHABOES. aor costs of the J«ue, whUe the execution creditor was aUowed Where a claimant claimed aU the goods seized, under a ^JtheZT^^' ""' '* *'^ *^^ '' '^PP^-d that'o" sLth of the goods were not covered by his mortgage, the claimant ZhT" '""'"^ "'**' ^"'^■*^* *° a "edition ofTe- Where eight horses were seized and the claimant suc- ceeded as .0 three, no costs of the -proceedings hire the Z^;r '"°''^'^' ^^"« «•« -*« of the issue' w..e:;jt ^iZ^T!" f '^^?* """' '°*"^"^ *o "^"* l^«« of the goods uStd V ^^*"°i **»« -*»o^«' «^d the balance more Van sufficed to am.wer the judgment debt, the claimant was or- dered to pay al the costs occasioned by the interpleader." Where the clamiant succeeds as to the bulk of the goods tm" "" ""' "**^ °' *'^ """« •^-^ «" - -PP-1 ?W Under the Pennsylvania Statute, which gives the execu- IZZf : ^i!"**' '' "P^'^ ^'^^ '^'' '"^^ *^1« to the go"i «. ound not to be m the claimant, it has been held, keie a claimant succeeded as to aU the goods in question except an xron safe worth $7.50, that the execution creditor sho2i nevertheless have his costs » has a n*^fn'r' T 1 oo«rt.-The party who succeed* ci^rf ^ ll V""^". °^ "PP^y^°« *o take the fund out of court, from the other claimant, or to his costs of appiying to enTefd t T^l J'^ T^^^^ ^" ^"«««-' wh^it hL court i^/'^\"*f^^;^''r *"*"'"« » ^"^'''^^ '^o^ the court. He IS entitled to these costs, although he has not -Dempsey T. Caip.r (1884). 1 Ont. Pr 184 806 THE LAW or INTERPLEADER. applied to the other party for a consent to payment out or delivery.** In Manitoba, however, it has been held, that the costs of obtaining money out of court must be borne by the party entitled to it, and not by the unsuccessful claimant.*^ SMvrity for eoiti.— The party substantially and in fact moving the proceedings, whether plaintiff or defendant in an interpleader issue, should, if resident out of the jurisdiction, give security to the opposite party for his costs." In equity, each defendant in a bill of interpleader, is in the nature of a plainti£F, in the cause sent for trial at law.'* Because a claimant is made plaintiff, and resides out of the jurisdiction, it does not necessarily follow that he should give security for costs, and when the defendant in the issue, is really interested in the replt as a plaintiff, he is not en- titled to call upon the absent plaintiff for security for costs." A non-resident defendant will not be required to give secur- ity for costs, when the burden of proof is on the other party.** In considering whether parties to interpleader proceed- ings ought to be required to give security for costs, the rules applicable to ordinary litigants ought to be observed. At the same time, in applying these rules, the question whether a party to an interpleader issue is to be treated as a plain- tiff or as a defendant, must be decided by the real merits of the case, and not by the mere form of the issue itself. In some cases each party is as much a plaintiff as the other." "WUls T. Hopkins (1836). 8 Dowl. 346; Barnes ▼. Bank of England (1888), 7 Dowl. 310; Meredith ▼. Bogen (1^39), 7 Dowl. 586: KotwUhttandlng Bowen ▼. Bramidge (1833), 2 Dowl. 213. "Glorglier t. Scoonf.s (1886). 8 Man. 238. •• Re Ancient Order of Foresters v. Gastner (1890), 14 Ont. Pr. 47; Smith v. Hammond (1883), 6 Sim. 10. >*o(«— Canadian Bank of Commerce r. Middleton (1887), 12 Ont. Pr. 121. is now an snthority, as the English Bale has been enacted in Ontario. See Bule 11S2. "Anon T. (1685). 1 Vem. 851. " Belmont t. Aynard (1879), 4 G. P. D. 221, 852; McPhillips r. Wolf (1887). 4 Man. 801. " Mannfactnring Co. v. Gerhard (1S78), 7 W. N. G. Pa. 51. "BhodM T. Dawson (1886). 16 Q. B. D. 548. COSTS AND CHARGES. 809 ITie substance and not the form of the proceeding must be looked at.'* Where a claimant ia substituted for the original defen- dant, under an interpleader order, he is entiltled to call upon a foreign plaintiff for security for costs, he stands in the same position as any other defendant. The fact that the stakeholder, who was the original defendant, did not apply for security before interpleading, is no reason why the claim- ant substituted should not be allowed to do so.** Where the plaintiff in an issue, directed upon a stake- holder's application, is insolvent, he must give security for the costs of the defendant in the issue." Where an action was directed instead of an issue in the name of a bankrupt trustee as plaintiff, the plaintiff's eeatui que trust was ordered to give security for the costs of the defendant in the action.** Bvle M to Movrity in dieriri cam.— In a sheriff's inter- pleader, thfi party out of the jurisdiction, whether claimant or execution creditor, may be ordered to give security for costs to his opponent in the issue. Both parties are actors, the one by his execution, the other by his claim. By his notice the absent claimant commences the litigation, even more than does the execution creditor by his writ. 'If either party had been left to sue the sheriff according as he had ex- ecuted, or refused to execute the writ, he would have had to give security for costs. Whether plaintiff or defendant, the party out of the jurisdiction must give security for costs to his opponent. Therefore, the rule that a defendant shall not be compelled to give security for costs, does not apply to a defendant in a sheriff's interpleader issue. The court has a discretion, under the English practice, and may for the purpose of any interpleader proceeding, make all such orders as to costs and all other matters as may be just and ■TomUnron v. Land & Finance Corp'n (1881), 14 Q. B .D 689 ^Bena«ech r Bessett (1845). 1 C. B. 313. 2 D. & L. £« Tanner v. European Bank (1850), L. R. l Ex 261 See alio "Proat T. Herwood (1848), 2 Dowl. N. 8. 801. Sid THE LAW or IKmu>LIAOXB. I msoMble." Sometimeg eaclvparty maj be dinwted to «Te Becunty for his opponent** costs.** In an Irish case, both the claimant and the execation creditor being out of the iurisdiction, the court refused to compel the execution creditor, who was defendant in the issue, to give security for costs." Although a non-resident may be required to give security for costs, he will net be required when an execution creditor to give security for damages.** How Mourity ii orderad.-In a proper case, security for costs may be directed by the order awarding an interpleader issue, or by a subsequent order, but until it is decided that there is to be an issue security cannot be ordered.** The order should provide that the absent claimant give security and m default that he be barred.** An application for secun^ for costs of an intei|,leader issue, made after the date of the interpleader order, must be styled not in the original cause but in the interpleader issue.** The same practice prevails in the Scotch action of multi- plepomdii^, the question 'is the process competent' is de- cided before security is required from a fr~ign chiimant." fleetofcmV^ IkZr^ ^" ^' Webster (1896), 17 Ont. Pp. 18». SJSnw.llT.™ "-**««'*»» or^itor ko. »«« »ra,rca to give temnttt Williams v. GroMlinK (ISiTi 4 n a k lum. t n Onl. Pr. 480; Fan- t. O'NeU (1896). 16 CanadaT T MOM-n 2 Ir B. C. L. 74. * **" ^- ^"""' ^^^'^' -Workmelfter V. Heal, (1876). 10 Ir. B. C L. 460 -Belmont v. Norri.. T. ft H. Pr. P«. 907 Buchanan V. Campbell (1880), 6 Man. 308. (N. W i.y' ^^^^'^ <18W>. M Canada L. T. Occ. N. 282 "McMaster V. Jasper (1886), 3 Man. 606. n^H K » 1^ Campbell (1878). Ct. of Session. 1 B. 281: North British By. Coy. v. White (1881). Ct. of Sessloa 9 B^ sf '"«ll» COSTS AND CHABOE& Sll Iffaet of aot giTiaf .— If a party to an interpleader iune neglect* to give security, when ordered to do bo, his claim will be barred." Where an execution creditor oat of the jurisdiction was defendant in an issue, and neglected to give security, an order was made after the lapse of six months, that the money in court be paid out to the claimant unless security were given within fourteen days." Security tnm the applioant.— In was held in England in 1860, that a stakeholder, a defendant in an action, could only have relief by interpleader upon giving security for the plaintirs costs. Lord Campbell remarking, that the court could mould the rules according to the justice of each par- ticular case, and that it would not be just that the plaintiff should be compelled to relinquish a substantial defendant without security,'* and this decision has been foUowed in New South Wales." In a later English case, however, it was decided that a stakeholder who was defendant in an action could not be asked to give security for the plain- tiflPs costs, merely because he asked to have substituted as defendant a third party who was insolvent." Security for the appUcant's coiti.— Under an Ontario rule, which allows the court to do what is just and reason- able with regard to costs, it has been held that a claimant m insolvent circumstances may be compeUed to give security for the applicant's costs, as was done in a sheriff's case where the execution creditor was insolvent. It was said to be just and reasonable that the creditor should be required to give security for the sheriff's costs, because he was actively seek- ing to enforce his claim to goods which had been seized in the possession of the claimant." In Ontario, f^m 1865 to 1888, the Interpleader Act pro- vided that the court might require either or both parties "Canadian Pacific Railway v. Forayth (LSSH), 3 Man. «. »MeUn r. Dumont (1869), 17 W. B. 6T3. -Rk!'? /• Prfckett (1880), 20 L. J. Q. B. 151. -CUaholm r. Bicliardaon (1876). 14 N. 8. Wale., 8. C. B. 334. "Bidgway r. Jones (1860). 29 L J. Q, B, 97. •Parley v. Pedlar (1901). 1 Ont 670. Zlt THE LAW or INTKRPLBADKR. to give security for the coats of the sheriff." But this pro- vision did not place the sheriff in a more advantageous posi- tion than an ordinaiy party, and he was only entitled to security in a case sinikr to that in which a defendant in an action would be entitled to caU for it. Where the cUim- ant was a married woman and in financial straits the sheriff was lefused security.** Before a sheriff, in Ontario, is obliged to seize goods in the possession of a third party claiming them, and not in the possession of the debtor, he must be furnished by the execution creditor with a bond, conditioned that the parties executing it will be liable for the costs and expenses which the sheriff or claimant may be put to, by the seizure or sub- sequent dealings with the property, including the inter- pleader suit, and which he may not recover from other per- sons who ought to pay the sanjie. The bond is a bond of indemnity to the sheriff and his assigns, with two sufficient sureties, who must justify in double the supposed value of the property, such value t? be stated in an affidavit attached to the bond to be made by the creditor, his soUcitor or agent. If the sheriff is not satisfied with the bond offered, the mat- ter in difference is settled by a judge following the practice on replevin bonds.** CnurgM of ftakeholder in equity.-When the stakeholder who seeks relief is a wharfinger, or other person entitled to charges for the custody of the goods in question, such charges must be paid to him, as well as his costs of the in- terpleader suit or action.** Under Interpleader Acts—Under the English Inter- pleader Act of 1831, the person seeking relief was obliged to ^28 Vict. c. 19. 8. 2. Gray t, Alexander 0884), 10 Ont. Pr. nmJ!.?™***"'" ^Morriaon (1884), 10 Ont. Pr. 448. Although thia r^^!^? ^"l ??t ™bon (1835), 4 Dowl. 231; Yates v. Meehan (1890), 11 Ir. C. L. B. App. i.; McCollnm v. Kerr (1862), 8 U. C. L, J. O. S. 71; Marqnis of Lansdowne v. Bradshaw (1842), BL D. * L. 18. But lee Underden ▼. Burgess (1885), 4 Dowl. 104. where the powKssion money was to commence a week after the date of the order. CO0rM AND CHABOBS. SIS ■« poMewion money from the date of the order, and the ex- • penses of sale, repreaen his actual disbarsements in -arry- ing out the directions of the court as its officer. Th «e he •hould be allowed to retain, subject to «,y moderation. TTie success of the claimant does not justify an order upon the sheniT to refund these expenses, because the claimant by not girmg security has accepted a sale as the other alter- native imposed by the court. If the claimant succeeds his proper remedy is to recover them from the execution creditor." If, after an order has been made, the sheriff delay sell- ing at the request of the execution creditor, so that the ckimant may have further time, and the sheriff is unable to sell at all, and the issue is determined in the claimant's favour, the court will, on the sheriffs application, make the creditor pay the sheriff's possession expenses." Bnle in IreUnd.-In a recent Irish case the law is laid down as follows: An order to interplead is never made ex- cept m the presence of the judgment creditor and the claim- ant. If the latter do not attend his claim is barred. If the former do not attend the sheriff is ordered to withdraw from possession. In neither case is there any additional expense for keeping the goods. But where an order to inter- plead ,s made the claimant is at liberty to elect between having the goods sold at once, or getting possession of them on giving security. For an obvious reason, he generally takes the second alternative, and therefore the order is so drawn as to give him a certain period to procure the neces- sary security. It often happens that he does not do so until the last moment, and occasionally he fails to do so alto- orrZ'' ISk '"'" *^' '^'^ ^«"« "°^«' the o'd« of the court. The question naturally arises, who pays for keeping B«k""i;*e??ffi ?f??\'i^^;o^- ^ C-ep-ralbg Ontario t/OfflBwnwealth v. SideB. 12 Lane. Pa 145 ' -Be Creagh (188U). 11 N. 8. Wal« L.' B. Id 316 THE LAW OF INTERPLKADEB. \ the goods from the date of the order till security is com- pleted or sale ? Surely, the reasonable answer is, the claim- ant, for whose benefit and at whose request the goods arc kept. This would be quite irrespective of the interpleader suit. The claimant causes the court, which would other- wise direct them to be sold at once, to order the sheriff to retain them for tlie claimanii's benefit. The practice has been to give the sheriff his costs of possession out of the proceeds of the sale, if the fund is brought into court, and if not, against the claimant even where he succeeds. The latter may be entitled to have such costs included in the costs awarded him against the judgment creditor, but this does not follow as a matter of course. If the judgment creditor succeeds, the sheriff retains the amount out of the proceeds as part of the costs of the levy, and if the judg- ment debt is not fully discharged ^y the amount realized, the judgment creditor would in most cases, be entitled to have an order for the costs so deducted against the claimant." Sheriff's right againit oreditor.— A sheriff has always a right to say to the execution creditor who puts him in mo- tion, pay me the amount of my proper charges. The strict form of order will be, when a claim by a third person fails, that the charges shall be paid in the first instance by the execution creditor, who shall have them over against the third party. This is the strict order which the sheriff is entitled to, although often he does not ask for it, but if the sheriff has no faith in the solvency of the claimant, and prefers the liability of the execution creditor, he is entitled to it.""* And if an execution creditor is barred, after an issue has been directed, he must pay the sheriff's possession money and expenses occasioned by the sale.** A sheriff is entitled to such possession and sale expenses as he may incur, in dealing with the subject matter, at the " Mnlone r. Rom (1900) ? Irish B. 586; Taaffe t. Tyrrell ^902), 14 If. C. L. B. App. XXVII. " Smith T. Darlow (1884). 28 Chy. DIt. 606. " Manitoba & N. W. Land C!oy. ▼. Koutley (1806), 8 Man. 296. COSTS AND CHARGES. 817 requMt of the parties after an interpleader order is made, to be paid by the party in the wrong." EzpeniM before the date of the onLer.-The possession money before the date of the order is regarded as part of the expenses of executing the writ, which would have been incurred just the same, even if the claimant had not ap- peared. This is the reason why the claimant is not bur- dened with these charges at all. The amount of them can bo added to the sum to be levied, but this will not give the sheriff a right to levy for more than the possession money payable m respect of the ordinary possession in executing the process.- The date of the order, however, has not al- ways been the dividing point. In an early case in England, the date was a week after the order, because it was sairl 'lat in the ordinary course the sheriff would have to give .uat length of notice before selling.'* WhUe in a modem case, the sheriff was held entitled to possession money, as against an unsuccessful claimant, from the day the latter gave notice of his claim." Sheriff depriTed of poiMMioii money—If a sheriff acts improperly, m where he takes a wrong proceeding, o> holds the goods after he should have delivered them, and extra possession money is thereby incurred, he will not be allowed such expense. Thus, a sheriff was held not en- titled to possession money for keeping possession during a penod, while he was applying to a forum which had no jur- isdiction to entertain his application." A sheriff seized gn the 14th of September, and an inter- pleader order was made directing him to sell. On the 16th the official receiver notified him that a receiving order had been made against the debtor, and on the nth demanded the goods, which the sheriff refused to give up. The claim- ant afterwards withdrew his claim, the interpleader order r?'u^ ▼. Humphrie. (1888), 3 Dowl. 877. (1887)!'2'm.;.?S!*" <'^>' ^ ^"^^ ^^' ««' M.M.y r. Q.udrr ;|UndOTd«n v. BnrgeH (1885). 4 Dowl. 104. • rl?*!2f '* Matthnwt (1888). W. N. 176, 18 Q. B. D. 77 note •Ctark v. Ohctwode (1880). 4 Dowl. MB. **•**•"" "*»*•♦ 818 THE LAW OF INTERPLEADER. ■ 1: was discharged, and the sheriff gave the goods to the re* ceiver, hut h6 was only allowed possession money up to the ]7th.*^ An interpleader order directed the sheriff to with- draw upon the claimant paying his possession money. The sheriff claimed possession money before the date of the order, and also charges for a second man in possession. Upon a motion by the claimant, for an attachment against the sheriff for extortion, it was held that the claim was not extortion under the Act of Elizabeth, but a ground for relief on taxation of costs.** Bound by what the order allows. — A sheriff has no rights to possession money, except what is given to him under the interpleader order. And where the sheriff was ordered to deliver the goods to the claimant on payment of his posses- sion money, but in addition charg^ed for the keep of horses which were under seizure, it was held that this charge for keep, did not come within possession money under the order. His course was to have applied for these expenses when the parties were before the court. If they were pro- per they would have been allowed, and it was said, they might still be allowed when the matter should be finally dis- posed of, but in the meantime the question was, what does the order direct ?*• Amount of the ponesuon money. — The amount of pos- session money per day, which a sheriff may ask for, is the reasonable expenditure which may be necessary under the circumstances of each case. It has been held that $2 a day is too much for a sheriff to pay to a bailiff who simply locks the store and carries the key.™ It has been held in Ireland, that the sheriff should give the court information verified by affidavit, of the amount of expenses incurred, up to the date of the final order." " In re Harrison (1803). 2 Q. B. 111. • Long V. Bray a842), 10 W. R. 841. "Gaskell v. Sefton a846), 14 M. & W. 802. As to the keep of horses in Pennsylvania, see Landis v. Bear, 8 Lane. Pa. 41, and in Ireland, Malone v. Ross (1000), 2 Ir. R. S86. " Grant t. Grant (1888). 10 Ont. Pr. 40: Malone v. Rocs (1000), 2 Ir. R. 686. "Plnnkett v. Kearney (1876), 10 Ir. L. T. ft Sol, J. 47. COSTS AND CHABGK& 819 When iherUr holds goods pending trW.— In Ontario when the property in question remains pending the trial of the usae in the custody of the sheriff, the court may make an order for the payment to him of such sum for his trouble m and about the custody of the property as may be reason- able, and he is entitled to a lien upon the property to secure the payment, in case the issue is decided against the claim- AA.- ^r^T"^ be in the nature of poundage, and in addition to his possession expenses during the period Between creditor and claimant—As between the execu- tion creditor and the claimant, the practice is, that the execution creditor whether he succeeds or fails must pay .the possession money from the seizure up to the date of the mterpleader order, and that the claimant must bear them iTiS'^i. .°'u**' °''^"-" " *^« «'«**"«' ««««eed he wiU add these to the amount of his levy, in which case they are borne by the exei ion debtor. n, Jr I'T^l^^^' *^' ''*^*°* P*y« *^« '^^"ts of appraise, ment, if the debtor was in possession, otherwise the execu- tion creditor pays.^* If the order is not made on the first day upon which the sheriff brings the parties before the court, and enlargements take place, it is the reasonable practice to make the party asking the enlargement liable for the possession expense during such period. ^ When a claimant succeeds, he is entitled to be repaid by tiie execution creditor, tl^e sheriff's possession money which he has advanced; or where there has been a sale, the suc- cessful clamiant IS entitled to recover from the execution creditor the possession money and expenses of sale which shJriff r ^'^""'''^ '^'^ '''' ^'^^^^ «^ the goods by the ■Ont. Rnle 1121 *?."¥' L x'*",S,^^L," ^ * ^ 802. nr, • ^'*- 80 of 1897. (I887)?'S'S,° 'pr"'lS.'!,f?' » * "■ »■ ": IWd .. M.n.to 8se THE LAW OF INTERPLEADEB. When the execution creditor succeeds, he is entitled, iu the same way, to have the possession money from the date of the order, deducted by the sheriff, made good by the o'aimant, but not the expenses of sale. 8e«le of ooiti. — In Ontario it was enacted in 1886, that thereafter when a sheriff had two or more County Court executions in his hands he was bound to make his inter- pleader application in the County Court, and the costs of all proceedings were upon the County Court scale/* But where a sheriff interpleads in the High Court, and has ex- ecutions both from the County Court a*^! from the High Court, a successful claimant is entitled to his costs on the High Court scale against a County Court execution credi- tor." It was held in England, whea interpleader bills were in vogue, that a rule which gave costs on the lower scale in certain named cases, and generally in all other cases where the estate or fund to be dealt with was under the amount or value of £1,000, included in its general words an inter- pleader bill.^* In Ontario, when a sheriff interpleads in the High Court, and the issue is sent for trial to the Coun^ Court or Division Court, the sheriff is entitled to his costs on the High Court scale, and the other parties to the proceedings will also have their costs on the High Court scale up to the time the interpleader order is made, while the costs of the ifesue will be on the lower scale. The rule being, that the scale of costs after the order directing an issue, must be determined by the scale applicable to the forum in which the issue has to be tried, and before the issue on the scale "40 Vict. (Ont.), c. 16, s. 3; Ont. Bales 1128 and 1128. Prior to 1886 it waa lield, tliat if a sheriif with County Court Writs, interpleaded in the High Court, hia coata were on the Oonnty Court Bcale, but the coata of the iaaue were « ««»»*» «P<»i an inter- pkader apphcabon in the High Court, to a County Co^ or a Dm«on Court for trial, and neither party aske to ha^ Ttoo ll^^; " "''*^''' P*^y °^J««*« to the forum, it tit hix^° o%7;:::;^^o/srir *'r ^-ii '- ^^ hi* tAiro« ♦« I. ^J^ P"y ^'o^** oJi the lower sealj. He must into »„rt i« ! ' "* ""^ *>»■ -i ''"ta"* I»id addition. B™ LS Z .J T* "^ "° ^""^ *" bv lh» .-..nit f- . "" "^' '" "»' determined h.« eomatin-e. been directed to .t<^d .Su TtoS o^.:^ .rbe■';^a^.b'"~^ '^ °''" "«• -- ' "" costs not otherwise provided for •* n ;.-l u i. ,^ . Ont^o, that under L rule, tt oosl^l tu^should Bryce (1882), Q Out Pr fflO ^ ^^* *" "'""^ Beatr ▼. aSM). 10 U. TTo TV ^- * ®- '^l' Salter r. IfcLeod ft If 322 THE LAW OF INTERPLKADIR. not be reserred to be disposed ot in chambers, the proper practice being, to leave the costs to be dealt with by the trial judge in hia discretion, or in accordance with the jury's finding.* Effect of a judgment for ooitt. — Whether a claimant in interplrader, who has sncceeded and taxed his costs under an order in the interpleader proceedings, is to be considered as a judgment creditor within the garnishee clauses of the English Common Law Procedure Act of 1854, and so en- titled to attach a debt due to his debtor, was in 1861 an- swered in the aflRrmative,** and in 1873 in the negative.*^ An unsuccessful claimant wae ordered to pay costs, and after examination as a judgment debtor, an order to com- mit was made for a refusal by the claimant to answer ques- tions touching his property. It was held in Ontario, that an objection was too late, whictf asserted that a rule which gave a judgment creditor for costs only a right to examine the debtor touching his estate, did not apply to interpleader proceedings.** When corti can be set off.— An execution creditor sued two parties and obtained a judgment and execution against one only, he discontinued as against the second who taxed his costs. A sheriff then seized goods under the execution which the successful defendant claimed. The sheriff in- terpleaded, and in the issue the claimant failed and was ordered to pay the execution creditor's costs. It was held that the costs between the two parties could not be set off, because they were not costs in the same proceeding, the action and the interpleader application being different pro- ceedings. They were not within the rule, where a party en- titled to recover costs is liable to pay costs to any other party, the taxing officer may adjust by set off.*" Sheriff'! poundage.— The sheriff's right to claim pound- age from the proceeds of goods seized, depends on the ■Qrothe ▼. Pearce (1888). 16 Ont. Pr. 482. . "Hartley v. Shemwell (1861), 80 L. J. Q. B. 228. •• Bett v. Pembroke (ISTB). L. B. 8 Q. B. 863. " McKioDOO ,T. Crowe (189C), 17 Ont. Pr, 291. " Barker t, Hemmiog (1881), 48 L. T. N. S. 678. COSTS AMD CHABOKS 828 legality of the seuure. The gheriff therefore must pay the proceeds into court, suapending hig chim to poundage untU after the trial of the interpleader iesue. If the execution creditor succeeds the sheriff will be allowed poundage if the claunant succeeds he will not.- If the execution credi- tor succeeds as to part of the goods in question, the sheriff will be allowed poundage on the value found in the credi- tors favour/* In Ontario, if the sheriff seize the goods of a judgment debtor, but for any reason do not sell, he is still entitled to his poundage, or such less sum as may be deemed rea- 8onable.»» Prima facie the sheriff is entitled to full pound- age, and the onus is on the execution creditor to show that a less sum is reasonable." This rule does not interfere with the general practice, that the sheriff cannot have poundage when the goods seized and sold are afterwards found to be the goods of the ckimant. In such cases the shenff does not seize the goods of a judgment debtor and so the rules does not apply.** In an ordimiry case, where the shenff has not sold, and there has been no particular risk or responsibility, one-third of the fuU poundage is usu- ally allowed.*' * Coiti between claimants stmnd tfll ime tried —The gen- eral practice, when an interpleader order is made, is to reserve the question of costs as between the claimants until after the tna of the issue.- And where the applicant has been allowed to deduct his costs and charges from the fund, or from the proceeds of the goods in the first instance, the 14 '^"pV. ^°'"** ^'^^' ' ^*'^'- ^«»-- Turner r. Crozier (1891). "Marquis of Lanadowne r. Bradshaw ri847^ ni n «. « ••.«. -Morriaon v. Taylor (1882), 9 Ont. Pr. 393 ^Turner v. Croaler (1891). 14 Ont. Pr 272 * r.port^""'''" " '^""'^ <^«^>' «"*• ^'-"-ter. Ma.ter. not as:^^tv: cTroT^' "" * ^- ""'■• «*"- - "eL«,d 824 THE LAW OF DTmPLKADEB qnefltion on whom the ultimate liability shall fall is also reserved.*' Where order for ooiU made. — Where an interpleader has been heard by a judge in chambers, the court has no juris- diction as to costs, the application to have them disposed of must be made in chambers before the same judge.** In Ontario, it has been held that it is not necessary to go to the same judge, but that any judge in chambers will do.** The successful party applies for his costs on an affidavit entitled in the original cause to the tribunal which directed the isBue.^ A successful claimant is entitled to his final order for costs, notwithstanding the fact that the other claimant has served notice of appeal, as an application to stay the execu- tion can still be made.* The plaintiff in a bill of interpleader, if his right to relief is not disputed, has his costs out of the fund at once, but if one of the defendants claim that the bill does not show a case for interpleading, the plaintiff cannot then move for his costs, but must set down the case for a hearing.* Bvle when new trial. — The general rule as to costs, ap- plies as well to trials of interpleader issues as to other cases. When a new trial of an interpleader issue is rendered neces- sary by the miscarriage of the jury, without the fault of either claimant, the general rule prevails, and a new trial will only be granted upon payment of costs.* But if it appears that the first verdict has been obtained 6y fraud or perjury, the costs of the first trial vrill be direct- ed to abide the event of the second.* " Searle t. Matthews aSSS), W. N. p. 176; 19 Q. B. D. 77 note. •• Bnnr ▼■ Scbofield a842). 2 Dowl. N. S. 261; Marks t. Bidirway (1847). 1 Ex. 8; Commercial v. Clark (1885). 1 Ont. Pr. 270. ** Bewell T. Bnffalo. Brantford A Goderich By. Co. (1860), S J. C. L. J. O. S. 29: 2 Ont. Pr 66« • Elliot T. Sparrow (1888). 1 B. & W. 870. •Wilaon T. WibwD 0878). 7 Ont. Pr. 407. * Jonea t. Oilhim (1818). Cooper 40. 'Janes v. Whltbread (1851). 11 O. B. 40(t. •OillinKham ▼. Btnart (1851). 11 O. B. 418, oiM to Iry.; Tyson V. Willis (1861)t 11 a It 418, cU€* tm Art. CHAPTER XIV. APPEALS. Two olMMi of •ppoali.— Appeals in interpleader are nat- urally diriaible into two classes; first, those in which the person seeking relief is interested as against one or both of the claimants, or in which one or both of the claimants allege that something is wrong in the order or judgment obtained by the stakeholder or sheriff; and secondly, those in which the claimants alone are interested, as between themselves, and with which the applicant has no concern. Appeals always statutory.— As an appeal is a favour ex« tended to a defeated litigant who is dissatisfied with the result, it follows, that a decision is final unless some statu- tory authority allows an appeal.* In some jurisdictions the interpleader statute in force contains a provision which permits an appeal, or which excludes the right to carry the matter higher, by declaring that the order or judgment is final, or that no «ppeal shall lie.* Osneral proTisions.— It frequently happens, however, that there is no special provision at all with regard to ap- peals in interpleader, and the question then arises— Does some general provision apply? In determining this it be- comes necessary to examine, somewhat closely and perhaps a«S^h' IZmi : ^' ^•»«^- McDongall (1886). 3 Man. 686. In sS?n. SB D.*S iT l"** ""'•"** ^- St*^"*^" (1861), Ct. of »Seo Regina t. Doty (1856), 18 V- C. O. B. 4(W- Kpsn^ v THE LAW OF nrmtPLEADEB. iiarrowly, the qoality and extent of an interpleader proceed- ing, to ascertain whether an interpleader proceeding can be fairly brought within the words of the general provision. This subject has already been considered, in dealing with the question — ' Is an interpleader proceeding an action or a pro- ceeding in an action?* As a rule all statutory provisions relating to appeals, when in general terms, apply to orders or judgments made in interpleader matters.* The words ' judgment in a cause or matter depending,' as construed by the Supreme Court of Canada, are held abundantly sufficient to include an interpleader issue and the matters in contestation therein.' But, when a rule provides for an appeal in an action, it has been held, that the word • action ' does not include an inter- pleader proceeding, which is not fin action but a proceeding in an action.* Final or interlocntory.— A further test in interpleader appeals lies in considering, whether each of the several deci- sions which may be rendered in the course of interpleader proceedings, is in its nature final or merely interlocutory. If final, the appeal may be under one provision, and may be such as will end only in the court of last resort;* if, on the other hand, the judgment or order is interlocutory, the appeal may be under another provision and may be limited, or there may be no appeal at all* In England the judgment on the trial of an interpleader issue must be appealed a^^ainst as an interlocutory order or judgment, and not as equivalent to a final judgment ia an action.* •Se« chapter x. « JL^'***^" ^' ^"^^' (1«N>). 4 H. & N. 810; WiUlamg r. Merder (1882), 9 Q. B. D. 837; Cole v. Campbell (1883), Ont. Pr. 498. ' Hovey v. Whiting (1888), 14 Canada S. C. R. p. 827. «o«V!^'iS^ J ,?'"""**'"'■ ^l^'^)' '^ Q- B. p. 311; Collis V. Lewis a887), 20 Q. B. D. 202: McNair v. Audenahaw (1891), 2 Q. B 602; labiater v. Sallirau 0888). 9 Canada L. T. 3: 16 Ont 418. But Me chapter x. ' Horey v. Whiting (1887). 14 Can. 8. C. R. 515. •See King v. Simmonds (1846), 7 Q. B. 311. •MeAndrcw v. Bariter (1877), 7 Chy. D. 701; McXair v. Anden- •haw (1801), 2 Q. B. 602; eoittn Hnghea v. Uttle (1886), 18 Q. B. D. 82. APPEALS. 827 In Canada the rule is the other way," although it ha« been held that the order which a sheriff obtains, is not in its nature final but interlocutory.^^ " 1*^^ Pennsylvania the verdict and judgment on an issue m a shenff's interpleader, was formerly looked upon as final and conclusive," but since 1897 new trials may be granted of issues, and judgments are subject to appeal." It sometimes happens that the same decree may be final as far as it affects one party, and intcriocutory with regard to o hers, rhus, the decree which the plaintiff obtains upon a bill of interpleader, is final so far as he is concerned, as It enables him to completely withdraw from the contest" but, as ,t requires the defendants to litigate their claims in further proceedings, is interlocutory so far as they are con- cerned, and remains subject to revision and alteration." ^ three partie. may apperi.-Upon a bUl of inter- pleader the complainant or either of the claimants may ap- ThS fh !^7,,"^f "^"*1 "«ht8 are affected by the decr«, and the fact that neither of the claimants, called on by the bill to litigate their rights, appeals, does not impair or de- stroy the complainant's right of appeal." relieT'h? 'k^ "^* '*^"* •PP-O.-When a person seeking relief has obtamed an interpleader order, and has paid th! money into court, he cannot further interfere so as to ob/^t ants alone." When an interpleader order is appealed from the applicant has no right to appear to protect his cZ' unless his conduct is the subject of the appeal o unt^' the mode of relief by interpleader is in dispute " "nSltf ''• ^*"''« <^«88). 14 Canada 8. C B 616 "Pa P r v* ^i^">' "^ P«- St. 60. » iJ'JT"' » ^'°''" '1828). 1 Cow. N. Y. 691 86 Jif m"- """'"*"' <^«^2,. 36 Md. 604; Heald v. Rhind (1887). "sT^'J: Jone- (1867). 24 Georgia. 474. Weat Blv«"?874).Tvr(S''^' '' *"°"- '= ^'"^ ^•«»°»' -' •tone (1897), 108 llw Ttoi iJf 8L ^'' ^'*'" ^- <*'""*- THE LAW OF IMTBBPLEADEB. WlMft elaifuuit Muuui appatL— When • bill of inter- pleader if dianuMed upon the demorrer of one only of the defendants, the other defendant cannot appeal from such decision, he is not prejudiced, for it is still open to him to sue the person holding the subject nuitter in dispute.** Where the sum in question had been paid into court by a stakeholder under an interpleader order, it was held that the court could not go behind that order, or enter into the question whether it was rightly made or not. The money was in court and the question was, what was to become of it?«» Ezeevtion debtor eumot appaal. — An execution debtor, who generally is not a party to a sheriff's interpleader, can- not move in the cause in which judgement has been recov- ered against him, to set aside* the order obtained by the sheriff, or the issue and judgment given thereon.'* Bngliih statute Umitinff appeals.— The second section of the English Interpleader Act of 1831 provided, that the judgment in any such action or issue as might be directed by the court or judge in any interpleader proceedings, and the decision of the court or judge in a summary manner, should be final and conclusive against the parties and all persons claiming by, from or under them.** In 1860 this provision was re-enacted in section 17 of the Common Law Procedure Act of that year,** and in 1883, although section 17 was still in force, a new rule was framed, which enacts that, " except where otherwise provided by statute the judgment in any action or on any issue ordered to be tried or stated in an interpleader proceeding, and the decision of the court or a judge in a summary way, shall be final and conclusive against the claimants and all persons claiming under them, unless by special leave of the court or judge, as the case may » "Washington "▼. Belt (1898), 13 App. D, C. 202. "Schoolbred v. Roberts (1900), 2 Q. B. 497. « McNider ▼. Baker (1864). 10 U. C. L. J. O. S. 108. " 1 & 2 WiU. IV., c. 58, a. 2. •23 & 24 Vict. c. 126, s. 17; Dodds y. Shepher.1 (1876). 1 75. Ex APPIALHL 8f9 he, or of the Court of Appeal."** It hM been held, that the word* at the beginning of the rule 'txetpt when other- w%M provided by $tatute' were inserted to leave eection 17 untouched,** and that consequently wction 17 governs, and in the cases covered by it there is no power to give leave to appeal,-** and hence, the words in the end of the rule, ' tin- few hjf apeeiai have ' are practically nugatory. Vnm nmmarj dedri«it.—ln England therefore, when the court or a judge in chambers disposes of the matter summarily upon the merits, the order is final and condu- sive, » and there is no power to give leave to appeal,** even with consent of parties.** Every decision of a judge in an interpleader matter, when he does not direct an issue or a special case, is a summary decision, and no appeal will lie from what he has thus decided.** It is equally a summary decision whether the order has been drawn up or not;*^ and a determination to hear the matter summarily, and an adjournment that evidence may be produced, is the same as a smnmaiy decision so far as the right of appeal goes;** and when the judge at chambers refers the matter to a Divisional Court, which bars the clwmant summarily without directing an issue, no appeal Although there is no appeal, it has been said that a judge has a right, when an order has not been drawn up, to stav the matter and re-hear it, if his attention is drawn to som^ "Order VLIL, r. 11. «n!!l1 ^- ?^*»«t»«« (1889), 5 Time- R. 642. 10 S'^B Vim*""""' ^'®^*^' ' ^ ^- ^' ^yo" ^- Morri. 0887). T«cke^a88^)^14"S T^' 2^ %^- ^ ^^•' ««'«» Hobh.wn v. T\ 7,iM, *l2?*.'' 1* Q- ^- ^- 871; Dawson v Pox rtSJW^ i^ n » • nVLY^^^ II ^"^ (1886). 16 Q.^ D. (S. ^' ^ ®- Z^^ ^' Shepherd (1876). 1 Ex. D. 73 -Re Tarn (1898). 2 Chy. 280. «ae Roberts (18S7). W. N. 231. -Bryant t. Reading (lSS«i, 17 Q. B. D. 128. ■Turner t. Bridgett (1882), 9 Q. B D 66 r-, 1^ m THE LAW OF IKTEKPLEADER. 1 thing which should be further considered;** or, if a judg- ment has been improperly given, in the absence of one of the parties, a rehearing ought to be allowed.** A summary order made by a Master is subject to appeal, because his decision is not that of the court or a judge, and so is not within the English section 17 above referred to, but is governed by the general rule which allows an appeal from a Master to a Judge in Chambers.** But a Master's decision which goes to a Divisional Court on appeal, is not further appealable to the Court of Appeal.** A summary order in interpleader made by a judge in bankruptcy can be appealed from.** _ The applicant can always appeal from a simimary deci- sion. Section 17, above referred to, making a summary decision final and conclusive against the parties, does not make it final against the sheriflf, and he can appeal; "parties" means parties claiming, and the sheriff is not such a party.** Final order in ohamben.— In England it has been fur- ther held, jn construing section 17 of the Act of 1860, that the judgment in any action or issue which is final and con- clusive is the final judgment which is pronounced in cham- bers, after the action or issue directed upon the interpleader has been iried,** and from which there is no power to give leave to appeal.** In Ontario a provision corresponding to the English sec- tion 17 of 1860, was in force from 1843 to 1888, when it was repealed.** It was construed in the same way as the "Re Roberts (1887), W. N. 231. * Kx parte Streeter, In r« Morris (1881). 19 Chy. D. 216. "Bryant v. Reading (1886). 17 Q. B. D. 128; Clench v. Doolcy (1887), 66 L. T. 122; contra Weaterman v. Reea (1883), W. N 228. " Waterliouse v. Gilbert (1886), 15 Q. B. D. 669; Bryant v. Reading (1886). 17 Q. B. D. 128. " Ex parte Streeter, In re Morris (1881), 19 Cliy. D. " Smitli V. Darlow (1884), 26 Chy. D. 605. "Robinaon t. Tucker (1884), 14 Q. B. D. 371; Field v (1880), 5 Timea R. 042; Hartmont v. Poster (1881). 8 Q contra Teggin v. Langford (1842), 10 M. & W. 650. « Lyon T. Mrrris (1887), 10 Q. B. D. 130. " 7 Vict. Capada c. 80. i. 2; B. B. O. 1877, c. 51, s. 7. 216. > Rirington B. D. 82; APPEALS. 881 R.gU«h section." Under the Ontario Hules adopted in 1888 It was provided that a •ununaiy decision should be subject to appeal.** In most of the Auatralian colonies, and the other Can- adian Provinces provisions founded on section 17 are in force.** Where, on a sherirs application, the judge decides in a smnmay maimer in favour of the claimant, and orders the shenff to withdraw, and protects him from action by the claimant, the execution creditor can appeal from such an order, as well as the sheriff.** ther^Jrr '^ ^ •' i«e-Under the English practice Iw »... ?^'. T "'' "PP""' '™'° "^yt^i^^ ^Wch takes J si ."■ rJ '' "° '"t^'-pl^-der issue, whether the issue n^ ^ hV". ^' * "'^^^ *^'^"^' °' ^y • i"^»« ^ith « jury, judgment or direction at the trial is not the disposition of the whole matter and is not flnal.*^ When the issue hL been tried by a judge and jury, the appeal is to a Son" Court, If by a judge alone to the Court of Appeal.*- it does not make any difference in this resoect tfint havmg tried the issue, the trial judge immeL^rgoes o„ Ih. i^ ? *.^°'^ ""^^ '^"P"^^"^ «^ the whole matter of Jo^'^^^J^t'rS^- - ''^'' «^^" '- '- ^^- **Ont. Bales 1110. "See Appendix. "wJ^K*** ""• ^J?'»et««T^ Time. (1890), 19 Ont Pr 2.1 (1800)^?Sp:; SnSl nVo. V ^^ %= ^^-n v. Kerr S. 206: Wlitv. Parker fSV^/VT^T^X^^i^ (*««»)• « »• * Bridgett (1882), 6 Q B D M^kwni:- "'• ^ ^.- ^•'^= Ti.rn»r v. B n art. 1^ _ ^ ~ • ""• "ODlniioii v. Tucker (1884t i.i ri V. St^man (1883). S'^ iT'lKe" **• ^ "*• '^= ^•™^» Q- B. D. loHiW. ^' ^""'*" ^- 8t<'«'n««> (1888). 12 •Roblnaon r. Tucker (1884), 14 Q. B. D. 371. sas THE LAW OF INTERPLEADER. ill !!' The UBuat practice is for the judge at chaipbers to delay making a final order, when it appears that an appeal is to he taken from the judgment at the trial. Upon an appeal, the court instead of granting a new trial, may, if satisfied that all requisite materials Tor arriv- ing at a conclusion are before it, pronounce the judgment which in its opinion should have been pronounced on the trial of the issue.** In Ohio, when the question at issue between the claim- ants is for money only, the judgment is not appealable"* Sp«eiftl eue. — An appeal will lie from the judgment on a special case, stated in interpleader proceedings." Orden without jiurisdiotion. — Where there is no juris- diction in the first instance to make the interpleader order directing the trial of an issue,, or when an issue is sent for trial to a tribunal which has no jurisdiction to hear the matter, the trial of the issue must be looked upon as in the nature of an arbitration or summary trial by consent, and therefore final and not subject to appeal." Where all parties agreed to refer the cause, on certain terms, to a barrister, instead of having an issue directed, the court re- fused to stay the order.** From ordot u to eoiti. — The English statute which pro- vides that no order as to costs only shall be subject to ap- peal, except by leave of the court, has been held to apply to judge's orders in interpleader, as well as in other proceed- ings.** But an appeal lies from an interpleader order as » WiUiama t. Mercier (1882), 9 Q. B. D. 887; Lehman r. Hilde- brand. 10 Lauc. Pa. 249. "Warner v. Jaeger (1880), B Ohio Circuit Cta. 16; Pratt t. JEtnti Life Ina. Coy. (1890), 5 Ohio Circuit Cta. 687. •> Oumm ▼. Tyrie (1866). 6 B. & S. 296. "Carew v. Hanly. (1890), 24 Ir. L. T. R. 83; Richardaon v. Shaw (1876). 6 Ont. Pr. 296; Federal Bank v. Canadian Bank of Commerce (1886), 18 Canada S. C. R. p. J399; Coyne v. Lee (1887;, 14 Ont. App. 608; Teakey v. Neil (1893), 15 Ont. Pr. 244; Clancy t. Yonng (1893). 15 Ont. Pr. 248. •« Drake v. Brown (1836). 1 O. M. & R. 270. " Hartmont v. Foster (1881). 8 Q. B. D. 82; Field v. Rivinjfton (1889), 5 T. L. B. 642; ooMtra Teggin v. Langford (1842). 10 M. & W. 006. APPEALS. 888 to costs, when the order has been made without jurisdic- tion.** When meriti not tried.— When a claimant applies for a new tnal, after a verdict obtained without the merits having been gone into, one of the objects of ordering the trial of an interpleader issue has been defeated, and there is not the same necessity upon the motion for an affidavit disclosing the merits, as in moving for a new trial in an ordinary ac- tion, because the very issue itself discloses what the claim- ant's claim is.»^ Wh«ai fund paid over.-It has been held in Manitoba, that a claimant's right to appeal is not affected by the fact that the appUcant has under the order appealed against dehvered the goods to the other claimant," while the Court of Appeal in Ontario has decided, that after money, which has been in question, has been paid over, no appeal lies" Few matter oumot be med.-If a claimant omit to set up some ground which he might have done at the trial of the issue he wiU not be allowed to set it up afterwards on an appeal, by reason of the maxim, interest republicae et ut /?«*, Wt«m..o A claim based on another title, not disclosed at the trial will not be allowed, and it does not matter that It was the claimant who was successful on the issue who now attempts to set it up, such should be a matter of substantive application." Affidavits and admissions, upon which the court acted m granting an interpleader order, cannot be used by a claim- ant upon an appeal from the judgment at the trial of the ."vmT° '^Maddox (1883). 12 Q. B. D. 100. B. 43J"ri UpSer^CalSflt' J-^J" ^'^^' ^ ^pper C.n.d. Q. -wr' ^' ^^"^ <^^>' « Man. 477. bred ra^. TlSSSrJTk '40?"*- ""''' ^= •« «'- ^^->^- 2 S.^Tu g.'S.^ ''■ '"• '**•• ^»'«-P«'» -' De LI... (1881). ■Barker ▼. I^ewn (1881). 1 Ont. 114. •White V. Bech (1885). 171 P.? S "k. SS4 THE LAW OF INTERPLEAOKB. |i ll PI Etxor eorreoted without >fpe>l.— There is not the same necessity for allowing an appeal from the jadgment or Ter- dict upon the trial of an interpleader issue, as there is in ordinary cases, because many questions raised on an appeal may be adjudicated upon when the matter goes back to chambers. The court may be so satisfied with what has trans- pired at the trial, although the verdict of the jury may be open to exception, as to have a sufficient view of the rights of the parties to enable it to act. Thus a new trial was refsMd when the court was satisfied, although the judge wl» tried the case had directed the wrong party to begin."* Where an execution creditor appealed from the verdict in favour of the claimant a married woman, on the ground that she had no title in law, as the title was in the husband the debtor, the court refused to set aside the verdict, as the question raised might go to the judge at chambers for disposition. It was pointed out, that the refusal of the ap- peal had not the effect of deciding that the goods were not subject to the execution, or that they were, that question being still open to the judge at chambers.** ChuMi where i^peala refuted. — In the following instances the court has refused to set aside a verdict: — Where the judge inadvertently stated the issue to the jury in a wrong form;" where there was a variance between the issue directed by the interpleader order, and the issue stated in the record, the latter being the issue which ought to have been direct- ed ;•• and where the claimant claimed all the goods seized as his own property, although as a fact he was a partner with the debtor and had only a two-thirds interest, the ver- dict having gone against him, the court refused to allow him to have the matter re-opened, although he had made a mistake in stating his claim, and awarded the whole fund to the execution creditor.'^ " Edwards v. Matthews (1847), 16 L. J. Ex. 291; 4 D. ft L. I'll. " Bird V. Crabb (1861). 30 L. J. Ex. 318: 7 H. & N. 996. "Evans v. Evans (1803). 165 Pa. St. 672. "Gourlay v. Injrram (1869), 2 Chy. Ghamb. 309 (Ont.). "Larkln v. Graham (1888), 2 N. 8. W. L. B. 65. APPEALS. 335 If Irrt «der irrefntar.-lt has been said with regard to mterpteader cases, that tlie court is bound not only to con- sider the intewts of the parties in the suit, hot, as far as posaible, to keep the practice of the courts intact By neglecting to do this, risk is inn of having aU the subse- quent proceedings set aside, by wwon of the irregularity of the <»der on which they are folded." BwharitiMi.— Where an applicant for relief is affected by an order m an inferior court, in interpleader proceedings, from which no appeal lies, he should apply for prohibition in the Su^ior Court to prevent the order from being acted upon. ftrt if the order, though erroneous, is made at the request of one of the parties and is acted upon, a prohibi- tion at the request of such party will be refused.^" Certiewi—When an interpleader order has been made in an inferior court, directing an issue in that court, it has been held that a certiorari does not lie to remove the inter- pleader issue from the inferior to a superior court, and if such a writ do improvidently issue, an application should be made to quash the certiorari and not for a procedendo.'i Wh«i order entitling in two diviiiom—When an inter- pl«der order is entitled in two actions in diflFerent divisions of the court, there being two executions in the sheriff's hands an ^peal from the order may be entertained in either divi' sion, although one of the execution creditors may have been barred." from Inferkw Conrti.-When interpleader proceedings have been transferred for trial to an inferior court, as a rule an appeal lies to the superior court from any order or judg- "Richardson v. Shaw (1876), 6 Ont. Pr 296 HnJofr"^ wm.^"^^ ^^**>' « ^PP^"- Canada L. J. O. S. 16- am!is rS" '''^'' ' ^- ^- ^- '■ «• «• '''■' ^^ ^- «--" "Hogaboom v. Grundy (1804), 16 Ont. Pr. 47. THE LAW OF INTERPLEADER. ment in the former;*' and vhen interpleads proceedings originate m an inferior conrt, there is generally an appeal to a superior court.** CH«i ia Inf «rior CoQrti.-^The following are decisions affecting interpleader appeals in inferior courts: — Where a landlord appears upon the hearing of an inter- pleader summons, he, as well as the execution creditor and the claimant, has a right of appeal.** Where a statute allows an appeal, with the leave of the court, when the money claimed, or the value of the goods and chattels claimed exceeds £20, an appeal lies, although the deht for which the goods were seized is less than £20.** If neither the money claimed, nor the value of the goods, exceed £20, the court has no power to grant leave to appeal.** Where a claimant paid £12 into court as the appraised value of goods, and afterwards aoughi to appeal, alleging that the goods were greater in value than £20, the appeid was refused on the ground that it could only relate to the sum in court.** And where the goods were less than £20 in value, hut the claimant sought £35 damages againat the hailiff and execu- tion creditor, hut was allowed £16 only as against the credi- tor, an appeal was refused, as it was held Jiat a claim for damages is not within the statute.** Where judgment was given for the execution creditor with costs, and the claimant succeeded on appeal in getting a new trial directed, it was held that the whole judgment, including that part which related to costs, was thereby re- versed.** "Hughea v. Little (1880), 18 Q. B. D. 82; Thomaa ▼. Kelly (1888), 18 App. Cas. 606; Barker v. Leeson (1881). 9 Ont. Pr. 107; Clancy t. Yonng (1888). 16 Ont. Pr. p. 282, 288. " Feehan t. Bank of Toronto (1800), 10 Upper Canada O. P. 82. Bee also Ont. Rev. Statutes (1897), c. 66, a. 82; b«l tee Isbtater v. BalliTan (1888), 9 Canada L. T. 8, as to Ontario District Goatta. " WUcozon ▼. Bsarbjr (1800), 29 L. J. Ex. 184. " VaUance v. Naish (1868), 8 H. ft N. 712; 27 L. J Ex. 142. T^CoUia V. Lewis (1887), 20 Q. B. D. 202. "White T. Milne (1887), W. N. 280. •Lumb V. Teal (1889). 22 Q. B. D. 075. "Gags V. UoUins (1867), L. B. 2 O. P. 381. APPEALS. 887 ^i-.T'^" o»« »«ction of the statute made the order in inter- ^eader pro<^eedmgB final and concluBive, nnles. there .honld b« « appeal under the same Act, it was held, that a subse- quent section which allowed an appeal by way of an orderto review, might be invoked." r j j ^ oraer w> aJl- ''"^'n ^"^^ ^ ^''^"•^ ^^ "° »PP«»1 "«« from the d^mon of a County Court judge upon an interpleader pro- cess, under a provmon which allows an appeal to any person doBsatisfied with an order of dismissal on the merits " II.L.I. 22 i ml CHAPTER XV. ACTION IN THE NATURE OF A BILL OF INTERPLEADER. Beasoni for the proceeding. — While the remedy by means of interpleader is a valuable and necessary process in legal procedure, still its scope is limited, and many cases of con- flicting claims are not covered. A person owing a debt or in possession of property may not be able to show all the strict conditions necessary before the court will award relief by way of interpleader, and may still be an innocent stake- holder desirous of doing what is fair and right between him- self and two adverse claimants. These are the cases where an action, or a bill, in the nature of a bill of interpleader will lie by a party who has some interest, to ascertain and establish his own rights when there are conflicting rights between third persons.* When resorted to. — An action in the nature of a bill of interpleader, as a distinct proceeding, has now become well known, more especially in the United States. It is resorted to by a person upon whom adverse claims are made in re- spect of a fund or property, in connection with which such person has himself some interest, and as to which he can- not consequently ask the ordinary relief by interpleader. The action should not be brought, except when there is no other way for the plaintiff to protect himself.* The object. — In such an action the plaintiff seeks to ascertain his own rights to prt^erty in his hands, as well >Oomm«PiW National Bank of Peoria t. Newman (1894), 65 111. App. 534: Yaa Winkle r. Owen (1896), 54 N. J. Eq. 253. 'Hinckley t. Pfuiter (1888). 83 Wis. 64. ACTION IK KATUBE or BILL or INTIRPLEADKB. 889 M the rights of third persona claiming it .« ^ +1. x commenced against h^ m^y beZ^ whl*'?'* "^ '?'°°'' interpleader he only asks that LK', k I '° *° '"'^'""'y coU.de with eithefonL* ™„t isW r'*'" "'j"^ °°' •n entirely d«inlere,ted Zn, " i L r^yM*";' '" "^ %tT not .ct in rZiJl^Z^^ "'' -"-' ».«i .<* w tal. «.m._Tl,e pe«„n .ho seek, to settle 73 ;,fS '• ™"'' ™™' =" I- '■• *»^ Heath ,. H„l« a874, .Slu \'^«'"'> 0882), 50 mi™. 619. Koppingrer v. O'Donnell (188ft> i« » r ^,- „ Owen (1890), 54 N. J. Eq. 2;i3. ^' '*• ^- ^"^ V"" ^'"kle v. "Wir.feld V. Bacon (1857)', 24 Barb N Y -i^. r> Blewett (1893). 55 N. W. Rep. imWis ' ^^"*"" ''• " Hinckley y. Pfistor (1892). 83 Wis. 64, 840 THX LAW or IMTKHPLIATOB. hit difficutieg by thi* mode of procediure is not obliged to bring the money or fond into court.*' Vatwt of oUiBU,— iBJmotUnL — The plaintiff must show that the defendants have interposed substantial claims," and if he makes out a case showing that it is proper for the court to interfere in his fayour, he will be awarded an injunction staying any suits which nwiy have been commenced against him." Xortgagor. — A mortgagor entitled to redeem a mort- gaged estate, and in doubt to which of two the mortgage debt should be paid, both claiming title to the mortgage moneys, may institute proceedings in the nature of an inter- pleader for his own relief and protection so that he may • obtain a decree adjudging which of the hostile claimants is entitled to the debt, and that tn its payment the mortgage may be surrendered to him for cancellation.** When a mort- gagor is compelled to resort to such proceedings, he may be allowed his costs contrary to the tisual practice in suits to redeem, but such costs are not allowed him as a matter of right, but in the discretion of the court.** Penon entitled to equitable rdief .— If a party is entitled to equitable relief against the owner of property, of which the legal title is in dispute, so that he cannot ascertain to whom it belongs, he may file a bill against the several claim- ants in the nature of a bill of interpleader.** Fnnhaser. — A purchaser of personal property may file a bill in the nature of a bill of interpleader against his ven- dor and a third person who claims a right to the same, or » Oaynor v. Blewctt (1883), 65 N. W. Bep. 189 Wi». £nt tte Fowler v. WilUams (1859). 20 Ark. 641. «♦ Dreyfus v. Casey (1889), 62 Hun. N. Y. 95. » McHenry v. Haiard (1871), 46 N. Y. 580; Blythe v. Whiffln (1872), 27 L. T. 330; Curtis v. WilUams (1889), 35 111. App. 618. "Goodrick v. Sholtbolt (1712), Prec. ch. 333, 336; Sholtbolt t. Biscow (1761), 2 Bq. Ab. 173; Koppinger v. O'Donnell (1888), 13 R. I. 417; Cnrtin v. Williams (1889), 35 111. App. 618; Ulingworth v. Rowe (1894), 62 N. J. Eq. 456. " Bedell v. Hoffman (1830), 2 Pai N. Y. 199. ... "Mohawk v. Clute (1834). 4 Pai. N. Y. 384; Dohncrt's Appeal (1870), 64 Pa. St. 811. ACTION IV NATURX OF BILL or INTBHPLEAOBK. 841 who seeks to •void the Tender's title;" and so nuy a pur- chaser of land, in doubt as to the proper party to receive the balance of his purchase money.** Own« of new bnildiagi.— The owner of newly erected buildings may also maintain such a proceeding, when a bal- ance payable under the building contract is claimed by ser- eral, as by the contractor, sub-contractor, lien holders or attaching creditors." In some instances this has been con- sidered a case for interpleader proper." Trustee or executor— A trustee may bring a bill in the nature of a bill of interpleader, and obtain instructions from the court as to his duty, when different parties are making adverse claims in relation to the trust, and he is in doubt as to their rights," and so may an executor." This cor- responds in some measure with the Scots proceeding of mul- tiplepoinding, in which a trustee may have relief under sim- ilar circumstances.** BeceiTcr.— A receiver, not being entirely disinterested, and having to account to the court, may bring like proceed- ings when a fund in his hands is claimed by two parties.** Judgment debtor.— Where a defendant against whom a decree is recorded in favour of an administrator, for money due the intestate, is notified by the heirs that the plaintiff has ceased to be administrator and has no right to coUect the mon«y, he may if he has good ground to beUeve that it will be unsafe to pay it over, file a bUl in the nature of a biU of interpleader, bringing the money into court.*^ Tax payer.— When land lies partially in two adjoining municipalities, and is assessed and taxed in both, and both ' "H"^*^" ''• ^''™" <18*4), 6 Ala. 382. "Parks V. Jackaon (1833), II Wend. N. Y. 442. 4Ba "NewhaU y. Kastens (1873). 70 Dl. 166; Board of Bducatlon w ^l*"?.J^®^*>'.^^ K"- ": H»» ^- Baldwin (1880), 45 N J Bq. 868; Illingworth v. Rowe (1884), 62 N. J. Eq. 360 " See ante page .B8. " Spragne v. West (1879), 127 Mass. 471, (1885)^'^*'GrIi. vHli'^^' ^ ^'"'' ^'' ^^""^ ^- '^»''"'" ^ See page 31. " Wlnfleld V. Bacon (1857), 24 Barb. N. Y. 164. "Fowler t. WUUama (1869), 20 Ark. 641. Moooorv tmenunoM tbt cnait (ANSI ond ISO Tf ST CHART No. 3) ^ /1PPUEO MHGE Inc ie53 Cod Moid StrMt ^octw U r. Nm York I4MN USA (7IS) 462 - 0300 - FtMn* (7I«) M* - SMO - r«i 84S THE LAW OP INTERPLEADER. .JiiiiU'lii 1 ii^H iM^^^n ! n ir^^^^H collectors demand the taxes, the occupant or owner may maintain like proceedings to determine in which place the land is properly taxed." In some instances however this has been considered a case proper for ordinary interpleader.** In Massachusetts the proceeding will be entertained, pro- vided it is not demurred to upon the ground of public policy. It has been said that the prompt and unembarrassed col- lection of taxes is a matter of public policy. When relief is refused, the proper course is for the taxpayer to pay, and then to sue to recover it back." Person liable on a contract.— Where a person alleged that a written obligation had been obtained from him by fraud, and it appeared that two persons each claimed the instru- ment by independent assignments and had begun suits upon it, it was held that the fraud being proved such person might be relieved from the obligation in a suit against both claimants.*^ Municipal corporation. — A municipal corporation may maintain a suit in the nature of an interpleader, when through a conflict of authority and a double appointment, two persons claim the same salary for the same municipal office;'* also where it appears that a municipal treasurer has issued bonds or notes in excess of his authority, all of which have passed into the hands of bona fide holders for value, and the various holders have threatened or commenced actions, the corporation being willing to pay the amount authorized;" as well as where rival parties claim the dam- ages which have been allowed for land expropriated for pub- lic purposes by the corporation.** » Redfield t. Supervisors (1830), 1 Clark Eq. N, Y. 42; Dorn r. Fox (1874). (tt N. Y. 264. " 8m pagu uu. •* Hardy v. Yarmouth (1803), 88 Mass. 277; Mncev v. Nautuoket (187G), 121 UasB. 351; Forest River Lead Coy. v. Salem (1896). 166 Mass. 193. "McHenry v. Hasard (1806), 45 N. Y. 580. " New York v, Flagg (1858), Abb. Pr. N. Y. 206; Buffalo v. Mackay (1878). 15 Hun. N. Y. 204. " SuperviRorb of Saratoga v. Deyoe (1870), 77 N. Y. 210: Saratoga v. Seabury (1881). 11 Abb. N. C. N. Y. 461. "Hilton v. St. Louis (1880). 00 Mo. 100. ACTION IN NATURE OF BHX OF INTERPLEADER. 343 A creditor oumot have relief.— Where a claimant upon his own motion, and against the wish of the plaintiff, waa allowed into a pending action and sought to have the matter turned into an interpleader proceeding, it was held that he could not do so, because it is the debtor alone and not the creditor who is the party to institute interpleader. It waa also held that he could not maintain his proceeding as being in the nature of a bill of interpleader.*' In Conneoticnt.— In Connecticut the practice seems to be to extend the remedy by bills of interpleader, and to do away with the distinction between them, and biUs in the nature of bills of interpleader." In Hew York.— In New York, in 1894, the interpleader code was amended, so as to enable a defendant to bring into an action an adverse claimant, even when the defendant dis- putes, in whole or in part, the liability asserted against him; or where he has some interest in the subject matter which he desires to assert. The defendant still remains a party, and the whole controversy is determined in the action." In Pennsylvania.— In Pennsylvania actions in the nature of bills of interpleader are not in use.** Id loniiiana.— On general principles it has been held in Louisiana that the Code of Practice which does not cover interpleader, does not exclude all other remedies than those provided for, and accordingly the courts will enforce rem- edies through a proceeding in the nature of a bill of inter- pleader in chancery.*' -S^'m I"'"' ^t"*"*^ *" ^^' "=• 246. See appendix. ^ T^u ? /^^ ^'/*^- ^"^- ■ -^^PP*"' (1884). 10« Pa. St. 275; bat Me Dphnert'i AppMl (1870) 64 P.. St. 811. "Morrii v. C»iii (1888) Lou. Ann. 769. m I APPENDIX INTERPLEADER STATUTES. -i--^**"^T^° ****■ ^***® *•»« equlUble principles of Inter. pl««der were adopted and are followed by the Courtar HaJ^ /o»«.to« (1842) 4 Ala. 267; Gilmn v. OoldikLTmm.TjJ^ ML As to testimony on bills of Interpleader, see Chance^^te M. The complainant in a bill of interpleader. IntendiniTto take 2Si« 7^u"?:^i f'^? f °"r ."** »«rve lnterrigatori« Cn1£ parties required to Interplead: and if either of the defendants desires to toke testimony, he must serve interrogatories as well npon the complainant, as upon the adverse detoSw? bJTsSer iJZr.ttJl'}^?^'^^"' " '^^ ""^ "^ necesiSr'for eSS defendant taking testimony to serve the complainant with inte^ ^^^ ^. °°"'»- ■r*"' following C!ode prorisioiui have bSn adopted, sections 2.633. 2.634 and 2.638 of the Code of im «»«»i^«?"?° ??* against whom an action is pending upon any SS,^ ?ii„'2S *»»• I«y"e'»t of money may. at any time before !^ i?i?**; °^k« *«<»»▼" that a person not a party to the vSiV^rH.;S^wK° ^^^ him. claims the money l/contro- I^^'J^J^^ the money in Court, praying an order that Sfl.I^?*'^ required, on notice to come in and defend; and thereupon if such person do not voluntarily come in and make ♦i^'Sl »* ^^ defendant, the Court must, if he resides within ine state, order a summons to issue to him to appear at the «^»^ "i^ !°*** ^'""•" • ^^y defendant, of which serrice ^^L^ °^^t '°f Ji.* '^' *«° ^^ before the return day; or U he reside without the State, order noUee to him by publication tor three successive weeks in some newspaper published in the county, or. If there be no such paper. In a newspaper published ?v"^* ^ *••* county; and after such noUce has been given, the Court may make an order that such person be substituted as a party to the suit, in place of the defendant, and thereupon such person stands in the place of the defendant, and the latter is discharged from liability to the plaintifr and subsUtnted defendant for the money sought to be recovered of him. The defendant in an action tor the recovery of chattels In apMle. not claiming tiUe, may at any time before issue Joined, make affidavit that a person not a party to the suit; without collusion with him. claims the chattels or a part thereof, and vrvr an order that such person be required on notice to come m and defend; and thereupon. If such person do not voluntarily flom* in and make himsdf a party defendant the Court must. 846 THE LAW OF INTERPLEADER. If he reMdM within the State, order a summona to issue to him to appear at the next term and make himself a party de- fendant, of which service must be made for at least ten days before the return day, or if he resides without the state, order notice to him, by publication for three successive weeks In some newspaper published in the county; or, if there be no ouch paper, in a newspaper published nearest to the county. If such person appears and makes himself a party defendant, the de- fendant may be discharged; and if the defendant has retained posBession of the chattels giving bond, the Court may order the chattels to be delivered to such person, on his giving bond with sufficient surety, to be approved by the clerk, payable to the plaintiff, in the penalty of the bond of the defendant; with condition that if he is caFt In the suit he will within twenty days thereafter, deliver the chattels and pay all such damages as may be assessed for the detention thereof, and all costs adjudged against him. If such person refuse or neglect for three days after being made a party defendant to give such bond, the ctiiiels must be delivered to the plaintiff on bis giving uund with sufficient surety, to be approved by the clerk, payable to such person in the penalty of the bond of the de- fendant, and with like condition; on the execution and approval of either bond, the b6nd of the defendant is discharged and must be cancelled. The bonds taken under this section, on breach if the condition thereof, and on the return of the sheriff, as in th'j case of bonds taken from plaintiff or defendant in other act:ons for the recovery of chattels in specie, have the force '>nd effect of Judgments, on which execution may issue againsi f !1 or any of the obligors. If such person on notice, does not cime in and defend, the Judgment rendered in the action barfc him from maintaining any action against plaintiff or ('efenuan\ for the chattels, or the taking, or conversion, or detentio-a thvreof. If the plaintiff' fail to give bond nt. provided in this Be«:tlon the chatte'.a must be delivered to the defendant." When the defendant is a corporation the affidavit under either of the two preceding sections may be made by such officer, agent or servant of the corporation, as may have know- ledge of the facts set forth in the affidavit. Alaskm.— Code of Civil Procedure, section 37.— In any action for the recovery of specific personal property, if a third person demand of the defendant the same property, the Court in its discretion on motion of the defendant, and notice to such per- son and the adverse party, may before answer, make an order discharging the defendant from liability to either party, and substitute such person in his place as defendant. Such order shall not be made but on condition that the defendant deliver the property or its value to such person as the Court may direct, nor unless it appears from the affidavit of the defendant, flled with the clerk by the day he is otherwise required to answer, that such person makes such demand without collusion with the defendant. The affidavit of such third person as to whether he makes such demand of the defendant may be read on the hearing of the motion. Arlsoiut has no interpleader statute. The followini^ is the nearest approach to one. Revised SUtutes, 1887, section 880. ABKANSAS. 347 ^f kIM" *?"♦"«<> »»y t»»e pleading or examination of a party ^ ♦? H?^ *° *'*" Po^e^s'on or under his control any money lit gatlon l8 held by him as trustee for another party, cr which «™f*" " *■ '*'{' *° another party, the Court may order the !^^ ??° motion-to be deposited In Court or delivered to "uSerd^rUrnsoVSeCourr"" " '"'' ^ '""'' «"''^-' ^° fnii«^^5*'5?^7'^''® , *^"****''® principles of Interpleader are i^l?Z^ ' ?"""'" "• f"""""" <18">' 19 Arl£. 148; and extend to l^lJlf' I""*?"" "■ ''"J'^"" <1*5*>' 19 Ark. 297. Code provisions «nli ™-J /f ."' ".I**!"" '"''**='' stalceholders and sheriffs when S S- «»i**1;*°» »".?'• .'^•'* following are the sections of the fh^ thiL ^^U*""*,". ".*-"^ *° *•*« discretion of the Court whether »w„^.„^,'^^':*/ claiming will be substituted for the defendant. tergunon v. Ehreurenj (1882). 39 Ark. 420 «nv®-!J?i!?„° ***'• ^''?° affidavit of a defemlant before answer in S^wv fh-t "^° ^*u^*!;**=* °'" '°'' *•»« recovery of personal pro- perty, that some third party, without collusion with him. has rlo^^^ " "'**", *° ^''^ «"'••'«=* o' t'^e action, and that he Is ready to pay or dispose thereof, as the Court may direct tue m^ f ''^H "'''^? r °^^'"' '°^ ^^^ «"« ''««P'''8. or tor the 'pay! ^t?l ♦ *•*''?*" *" ^°"'*' o"" delivery of the subject of the ^^ J?!^*^^ l*^"*"^ *' " ™*y direct, and an order requiring such third party to appear In a reasonable time and malnuin or relinquish his claim against the defendant, and in the mean- time stay the proceedings. of t^lTJ^/ n /' ""*'•• *^"'"* ^""^y ^«"»« served with a copy nJ In Mlfr."*" *° *fP**'"' "*« C°"* "''y declare him barred of all claim in respect to the subject of the action against the SK?!/*'^*^, VL^* *PP«" ^« »»»»» »>« allowed to maki wh^^h-n ^L^^^I^V" ^''^ ^"°°' *° »«" °' »•»« original defendant! n«J?ifa ." '^ "'scha'-Ked from all liability to either of the other S»»in« wH^iif*^* ^°. the subject of the action, upon his com- o^deHveS fhe*?^f°'''''' °' *'* ^°"^ '°' *•>« '«''''°-*- ^^P^"' Mnr.f^hi'J? ,!!*'• ,T*»t provisions the last two preceding sec- or nth.^ i«^ applicable to au .-.Mon brought against a sheriff. or other officer, for the recov«rry of personal property taken by him under an execution, or for the proceeds of such property SLn*^ *°1?'L'' ^^ ^J"' '"'<' **•« defendants In any such action n-^l'f «°"«e«l to the benefit of such provisions against the f^tLn ^*?r '*^°"'' ***® execution Issued, upon exhibiting ♦2.; *u *^ the process under which he acted, with his affidavit Jh!- «* property, for the recovery of which or Its proceeds the action was brought, was taken under such process, fo- °.«<="°° 4950. In an action against a sheriff, or other officer for the recovery of property taken under an execution, the Court w^Lr'f" *»'^?PP"cation of the defendant, and of the partjln rHf^f*-/'"'""/. *•"! "«?"«on Issued, permit the latter to be sub- stituted as the defendant, security for costs being given. «— "5"^"?^ '?lS***-~^° *•>'■ colony the English Act of 1831 r^'v-S*1^ '° "f ^^^'°° 2. No. 15). Which afforded relief to M.«h-? .Sil" 7^""^ ^t ^'^ *^° ""e*!' »°d to the Provost Marshal General and other officers of the Court: to which was P- 848 THE LAW OF INTERPLEADEK. added a Mctlon allowing gamlsheea to Interplead and the follow- ing new clauie:—" Provided that warehousemen, wharf ingen, ahlp masten, and other carriers claiming no interest in the subject matter of the suit, otherwise than for their reasonable charges as such bailees may have the benefit of this Act without relinquishing their claim for such charges." In 1867. by Session 1. No. 13, this colony also adopted the English interpleader amendments of 1838 (Eng. 1 ft 2, Vict. c. 46. s. 2). and 1860 (Bng. 23 * 24 Vict c. 126, ss. 12-18), in which Jurisdiction was given to a Judge, and relief was awarded although the claims might not be connected. BHtlsk CelmM* has adopted the English Interpleader Code as it stood in 1883. f.nd the provisions are found in section 16 (17) of the Supreme Court Act. Revised Statutes, 1897, c. 66. and in the fifteen rules of Order LVII. of the same Act. For Interpleader in the inferior Courts, see County Courts Act Revised Statutes, 1897, c. 62, s. 120-121. Califorala.— In this State the equiUble principles of inter- pleader are followed on the equity side of the Courts: Pfi$ter v. Wade (1880), 66 Cal. 43. On the common law side interpleader is awarded to a stakeholder who is sued or expects to be under section 386 of the Code:. WelU v. Miner (1886), 25 Fed. Rep. 633. This provision is as follows: Section 386. A defendant against whojn an action is pend- ing on a contract, or for specific personal property; may at any time before answer upon aflldavit, that a person not a party to the action makes against blm, and without any collusion with him, a demand upon such contract, or for such property, upon notice to such person and the adverse party, apply to the Court for an order to substitute such' person in his place, and dis- charge him from liability to either party, on his depositing in Court the amount claimed on his contract, or delivering the property or its value to such person as the Court may direct; and the Court may in its discretion make the order. And when- ever conflicting claims are or may be made upon a person for or relating to personal property or the performance of an obligation, or any portion thereof, such person may bring an action against the conflicting claimants to compel them to inter- plead and litigate their several claims among themselves. The order of substitution may be made and the action of inter- pleader may be maintained, and the applicant or plaintitt be dis- charged from liability to all or any of the conflicting claimants, although their titles or claims have not a common origin, or are not identical, but are adverse to and independent of one another. Ooloamdo.— Code of 1899. Section 18. A defendant against whom an action is pending upon contract, or to recover specific, real or personal property, may at any time before answer, upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the Court for an order to substitute such person in his place, and discharge him from liability to either party, on bis depositing in Court the amount of the debt, or delivering CONNECTICUT. 349 the property, or Its value to such person as the Court may direct, and the Court may. In its discretion make the order. 0«WMetl««t.— The principles of interpleader in equity were early adopted. Naah v. Smith (1827). 6 Conn. 421. but no affidavit of the absence of collusion is required. The Courts have sought to extend the remedy by bill of interpleader, so as to do away with the distinction between such bills, and bills in the nature of bills of interpleader. Consociuted \. ataplea (1855), 23 Conn. 694. Section 1250 of the Revised SUtutes of 1887. When any debtor or person having in his hands the effects of anotbpr, shall refuse to pay such debt or deliver such effects, on the ground that he is the garnishee in a process of foreign attachment levied thereon, the person to whom such refusal of payment or deli- very has been made, may bring his action in the nature of a bill of interpleader against such debtor, the other parties in said process of foreign attachment and any other parties In interest. Public Acts, 1893. Chapter 42. Whenever any person has, or is alleged to have, any money or other property in his hands or possession, which is claimed by two or more persons, either he, or any of the persons claiming the same, may bring a com- plaint in equity, in the nature of a bill of interpleader, to any Court which by law has equitable Jurisdiction of the parties and amount in controversy, making all persons parties who claim to be entitled to, or interested in, such money or property; and said Court shall hear and dispose of all questions which may arise in such case. See Union Trust v. Stamford (1899), 43 Atl. 656; National 8avg. Bank v. Cable (1901), 48 Atl. 428.' DelAwave.— The equitable principles of interpleader are practiced. Hastings v. Cropper (1867), 3 Del. Ch. 165. and the following provisions have been enacted Revised Statutes of 1893. chapter 106. Section 34. The defendant in any action now pending or which shall be brought in the Supreme Court for the recovery of money, or of any goods, chattels, or the value thereof in damages, which shall have come lawfully to his hands or possession, may at any time after the declaration filed and before plea pleaded, by a suggestion to be filed of recorS, disclaim all Interest in the subject matter of such action, and offer to bring the same into Court or to pay or dispose thereof as the Court shall order, and if he shall also allege under oath or affirmation, that the right thereto is claimed by or supposed to elong to some person not party to the action (naming him or them), who has sued or is expected to sue for the same, or shall show some probable matter to the Court to believe that such sugges- tion is true, the said Court may thereupon order the plaintiff to interplead with such third person, and make such rules and orders in the cause and issue such process for the purpose of making such third person party to the action, and for carrying such proceedings to interplead into full and complete effect, and may render such Judgment or Judgments thereon as sha!l be agreeable to the rules and practice of the law in like cases. Section 36. If the process issued upon an order to inter- plead as aforesaid shall not be actually served, or personal notice thereof shall not be given to such third person, the said Court 850 THE LAW OF INTERPLEADER. ■hall haT« power, apon giTlns Jadgment for the pUlctlff to require him to eot^r into a recognitance, and if they ehall think it necessary with auffident aurety. to interplead with eueh third person, if afterwards and before the expiMtion of the time which would be allowed to him to prosecute fits claim against the de- fendant, such third person should appear in the said Court, and claim such money or such goods or chattels or the ralue thereof. IMstHot of ColviibUu— Has no C!ode provision on the sub- ject of interpleader, but makes use of the equitable principles and practice. Richardaon t. Belt (1898), IS App. Cas. D. C. 197. Zaclwsd.— The first of all interpleader statutes was enacted in Bngland on the 20th of October, 1831, entitled an Act to enable Courts of Law to give relief against adverse claims made upon persons having no interest in the subject of such claims. It is chapter 68 of 1 ft 2 William IV. and is as follows: 1. Whereas it often happens that a person sued at law for the recovery of money or goods wherein he has no Interest, and which are also claimed of him by some third party, baa no means of reUeving himself from such adverse claims but by a suit in equity against the plaintiff and such third person, usually called a bill of interpleader, which is attended with expense and delay; for remedy thereof be it enacted by tLe King's most excellent majesty, by and with the advice and consent of the Lords, spiritual and temporal, and Commons in this present Par- liament assembled, and by the authority of the same, that upon applicatiou made by or on the behalf of any defendant sued in any of his Majesty's Courts of Law at Westminster, or in the Court of Common Pleas of the County Palatine of Lancaster, or the Court of Pleas of the County Palatine of Durham, in any action of assumpsit, debt, detinue or trover, such application being made after declaration, and before plea, by affidavit or otherwise, shewing that such defendant does not claim any in- terest in the subject matter of the suit, but tbat the right thereto is claimed or supposed to belong to some third party who haa sued or is expected to sue for the same, and that such defendant does not in any manner collude with such chird party, but is ready to bring into Court or to pay or dispose of the subject matter of the action in such manner as the Court (or any Judge thei^eof) may order or direct, it shall be lawful for the Court, or any Judge thereof, to make rules and orders calling upon such third party to appear and to state the nature and particulars of bis cls« •bove mentlonS S^e ^ o^?X,^'^**~u '''■*'°» *° »« •"""«>. under a bm 01 aaie or otherwise, to such goods or chattels, hv wqv «# - Mcurity for a debt, the Cou,* or a Judge maj order I Lie o? the whole or part thereof, upon such teris m to Sayment^f thi ThiS thinrm 1;;''* '^T'' '^""^ °' otherw/.^^S^'^They °r^| Sf such Li« f; *"'* ™»y «»»'•«=' the application of the proceeds 14. Upon the hearing of any rule or order calling uoon D«r ^mJf it^SS^i Z^ i'*'^ *,'''* "'"" ""> PaScuUrsTf°tS^; CMUms, it shall be lawful for the Court or Judge wherever S^ E^'^tiiH*?."'.*?." '""""^ «° '^•■P"** or o^fhe va"e Of w-hf^ "^*"*'' " ■••■" ««)Pear to them or him desirable and ™!5i» ■°.*?v'*° ** t**® ••«»"«»* o' e»ther party to dls^ of th. Sr^™i ?«• respective claims of such pSSles. and toZer^nlSS SilfTlnk %f''^T^ ""T- "P°" ""«=•> *«"»- " they OT SI Sd«*?h««in ..*°* "°^'' *;* *° ™** ■"<=»' other rules and « m ?ii° " *° "i?!*". *•"* »" <^*'«' "Otters as may be Just Hon f; ™- i,*?** of interpleader proceedings where the quM- -if-n^ °°f .?£ i?''' "<' ">« '»cts are not in dispute, the Judge S5f d^Ji'Jl'^'^'' *' il*" «»««="-«t»on. to decide the qu«Uon with! SSir^wffi^ /° *."!*°° ""^ '"""«• "0' « »»e "hall think it j-si^j^ uir.r'r r ' *° "» ''™~"- '» ^ s^ rtSi S! fl^."°°.,°' *'\® 9°'"^ o' !""«» »° * summary maS cSmW hJ*'*"** conclusive against the parties and all ^ns Claiming by, from or under them. »^ow««i donelnlntlllilJ!!!;^"'"'*''"'' "»"«"• and decisions to be made and «2» .« J^'?'**''"" proceedings under this Act (excepting only any affidavits), may. together with the declaraUon In the catS? V.t.1. _ 354 THE LAW OF INTERPLEADEB. If »ny. be entered of record, with a note In the mugin ex- preeaing the true date of euch entry, to the end that the same may he evidence In future ttmee, If required, and, to aecure and enforce the payment of coeta directed by any euch rule or order, and every euch rule or order ao entered ehall have the force and effect of a Judgment In the Superior Courta of Common Law. Rulea of 1876— Order 1.. Rule 2. With respect to interpleader, the procedure and practice now «««» „*>y CourU «' Common Law under the Interpleader Acta. 1 ft 2 Will. IV.. c. 68. and 28 * 24 Vict c. 126. ahall apply to all aoUona and all the dlvt«lona of the High Court of JuaUce. and the application by a_f «'o'i*»°i •''*" be made at any time after being aerved with a wVtt of auftmona and before delivering a defence. ^ j^ Since the Hth of October, t8S3, the following provialona, foundM on the original Act of J8SI and amendments, govern, being Order LVIl. of the Rules of 188S. ^ . . „,w 1. Relief by way of Interpleads may be granted, (a) Where the peraon aeeklng relief (in thia order called the applicant) la under liability for any debt, money, gooda or chattela. for or in reapect of which he la, or expecta to be. aued by two or more partlea (In thla order called the clalmanta) making adverae elalma thereto, (ft) Where the applicant is a aherlff or other officer charged with the rttecutlon of proceea by or under the authority of the High Court, and claim la made to any money, gooda. or chattela Uken or Intended to be taken In execution under any proceaa. or to the proceeda or value of any »«<* ««»a» or chattela by any peraon other than the reraon agalnat whom the proceaa laaued. „ ^ » ^ v_ 2. The applicant muat aaUafy the Court or a Judge by affidavit or otherwlae— (o) That the applicant dalma no Intereat In the aubject matter in dlapute other than for chargea or coata; and (ft) That the applicant doea not collude with any of the datmanU; and (r) That the applicant, except where he la a aherift or other officer charged with the execution of proceaa by or under the authority of the High Court, who haa aelied gooda, and who haa withdrawn from poaaeaalon In conaequenoe of the execution creditor admitting the claim of the claimant under Rule 1« of thla order, la willing to pay or tranafer the aubject-matter Into Court, or to dlapoae of It aa the Court or a Judge may direct. (Amended 1896.) 3. The applicant ahall not be dia-entitled to relief by reaaon only that the tltlea of the clalmanta have not a common origin, but are averae to atid Independent of one another. 4. Where the applicant la a defendant, application for relief may be made at any time after aervlce of the writ of aummona. ,„ ^. 6. The applicant may take out a aummona calling on the clalmanta to appear and atate the nature and partlculara of their olalma. and either to maintain or rellnqulah them. 6. If the application la made by a defendant In an action the Court or a Judge may atay all further proceedlnga In the action. 7. If the clalmHntB appear in purauance of the aummona. the Court or a Judge may order either that any claimant be made m defendant In any action already commenced In reapect of the aubject-mattor in diapute, In Ueu of or In addition to the KNQLAND. 855 ?rtSi'*1Slrt 11 ♦k'*.*?* "•"• '^'''•*° *•»* clalmanu be stated and fl J^'iSf^"*.*? h-* latter case may direct which of the ciaimanta u to b«i olaintiff and which defendant »'ui«ui» «i-i».-. ' Court or a Judir« may, with the consent of both Claimants, or on the request of any claimants, if, having regard to the value of the subject-matter in dispute it seems desirable •o to do. dispose of the merits of their claims, and decide the "*"S Sff """""•''y manner and on such terms as may be Just. -A. ; Wh«re the question is a question of law and the facts are not in dispute, the Court or a Judge may either decide the question without directing the trial of an issue, or order that » special case be sUted for the opinion of the Court, if a special thereto ^'^" XXXIV. shall as far as applicable apply e»in« in'hil*!^"*' having been duly served with a summons cwung on him to appear and maintain, or relinquish, his claim f2^ ^* ■"?*" *° pursuance of the summons, or having appeared, neglects or refuses to comply with any order made ■rter his appearance, the Court or a Judge may make an order aeclaring him, and all persons claiming under him, forever Mrred against the applicant, and persons claiming under him; but the order shall not affect the rights of the clalmanU as between themseltes. « -l^' ^"®P* ^*>«''« otherwise provided by statute, the Judg- ment In any action or on any issue ordered to be tried or stated in an interpleader proceeding, and the decision of the Court or a Judge In a summary way, under Rule 8 of this order, shall be final and conclusive against the daimanta and all persons claim- ing under them, unless by special leave of the Court or Judge, M the case may be, or of the Court of Appeal. U. When goods or chattels have been seised in execution by • Sheriff or other officer charged with the execution of process or the High Court, and any claimant alleges that he Is entitled under a bill of sale or otherwise, to the goods or chattels by way of security for debt, the Court or a Judge may order the •»le or the whole or a part thereof, and direct the application of the proceeds of the sale in such manner and upon such terms as may be Just -^^JL^r**" ^^^l »'"' ^^^^^ "hall with the necessary modiflcations, apply to an Interpleader issue; and the Court or I.*!!. , ^w ^ •! ^*' i""® "*y *"»"y dispose of the whole matter of the Interpleader proceedings, including all costa not otherwise provided for. J*; ^*''* '° any interpleader proceeding It is necessary or expedient to make one order in several causes or matters pend- ing in several divisions, or before different Judges of the same division, such order may be made by the Court or Judge before ^.?J?i. J^iterpleader proceeding may be taken, and shall be entitled in all such causes or matters; and any such order (sub- ject to the right of appeal) shall be binding on the parties In 111 such causes or matters. '5. The Court or a Judge may, in or for the purposes of III '"t«7'*ader proceedings, make all such orders ks T^ta and all other matters, as may be Just and reasonable. 16. Where a claim is made to or In respect of anv irooA» or chattels taken in execution under the prJies. of ?he c^" 356 THE LAW OF INTKKPLKADER. It •hall be in writing; and upon the receipt of the claim, the ■heriit or his offlow ahall forthwith give notice thereof to the execution creditor according to form 28 in *P»f°*|» .?•'>' ^ the like ^ect. and the execution creditor ehall. wl^ln four days after receiving the notice, give noUce to the sherift or hta offlcer that he admlto or disputes the claim according to form 29 1 "appendix B. or to the like effect If the ««5«"o? "^^itor admits the Utle of the claimant and gives notice as directed by this rule, he shall only be liable to such sheriff or officer for any fees and expenses Incurred prior to the receipt of the notice admitting the claim. (Added 1889.) .. * *u 16o When the execution creditor has given notice to the sheriff or his offlcer that he admits the claim of the claimant, the sheriff may thereupon withdraw from Ppsseesion of the goods claimed, and may apply for an order protecting him from any action In respect of the said seisure and ponstssion of the said goods, and the Judge or Master may make any such order as may be Just and reasonable in respect of the same: Provided always that the claimant shall receive notice of such Intended appUatlon. and. if he desires it, may attend the heariiig «' the ^e. and. if he attend, the Judge or Master "Jfy. »?, a°^'?^ the purposes of such application, make all such orders as to costs as may be Just and reasonable. (Added 1896.) 17. Where the execution creditor does not In due time, as ilireeted by the last preceding rule, admit or dispute the title or fiyfwmant to S £^or chattels, and the f lalmant d«H. not withdraw his claim thereto by notice in writing to the sheriff or his^fflcSr. the sheriff may apply for an mterpteader summons to be Issued: and should the claimant withdraw his claim oy Stice in Sting to the sheriff or b»«. <>f<=«'' "j: *»'!, "'^f the creditor in like manner serve an admission of the title of the claimant prior to the return day of such ""mjnons and at the same time give notice of such admission to the cla*'?*'^*; .*i« S^dge or Master may, in and 'or the purposes of the Int«r- pleader proceedings, make all such orders as to costs, few. chtTrges and expenses, as may be Just and reasonable. (Added *^**23 ft 24 Vict. c. 126 (Common Law Procedure Act. 1860), section 17. The Judgment In any such action or Issue «■ may bTdlrwted by the Ctourt or Judge In any Interpleader proceed- KgJ.a~d the decision of the Court or Judge in a «ummary man- nw shall be final and conclusive against tiie parties and all oersons claiming by, from or under them, "^^r* 87 Vlrt. c. 66 (Judicature Act. 1873). "ctlon 26. sub- section 6. Any absolute assignment by writing «nder the hand of toe assignor (not purporting to be by way of charge only) of any debt or other legal chose In action, of which expr^ notice in writing shall liave been given to the debtor, trustee, or other person from whom the assignor ▼ould have been entttled to receive or claim such debt or chose in action, shall be and be deemed to be effectual in law (subject to all «I«ltIea which would have been entttled to priority over the right of the assignee If this Act had not passed) to pass and transfer the legal right to such debt and chose In action from the data of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the ir^^ ENGLAND. 367 concnrrence of the assignor: Provided always that If the debtor trustee, or other person liable in respect of such debt or chose' In action shall hare had notice that such assignment is disputed by the assignor or anyone claiming under him, or of any other opposing and conflicting clainu to such debt or chose in acUon. he shall be entitled if he think fit, to call upon the several per- sons making claim thereto to interplead concerning the same or he may, if he think fit pay the same Into the High Court of Justice under and in conformity with the provisions of the Acta for the relief of trustees. If it shall appear to a Court or a Judge that any proceeding now pending or hereafter commenced in the High Court of Justice, by way of interpleader, in which the amount or value of the matter in dispute does not exceed the sum of 600 pounds • _ • ^ • ™ay b« more conveniently tried and determined in a County Court, the Court or Judge may at any time order the transfer thereof to any County Court in which an action or pro- ceeding might have been brought by any one or more of the parties to such interpleader against the others or other of them. If there had been a trust to be executed concerning the matter in aue«tlon; and every such order shall have the same effect as Ai o ^®° '"'' *''® transfer of a suit or proceeding under section 8 of the County Courts Act, 1867 (now replaced by section W of the County Courts Act, 1888); and the County Court shall have Jurisdiction and authority to proceed therein, as may be prescribed by any County Court rules for the time being in force (47 ft 48 Vict c. 61, s. 17, Judicature Act, 1884). Interpleader in English County Courts. fi,« f^"7 *°'rl?^'i *^°"'* ^^^'^^ '^°^ *>«»• or ''hich may after the passing of this Act have. Jurisdiction in equity, or at law and in equity, and in Admiralty respectively, shall, as regards all causes of action within its Jurisdiction, for the time being have power to grant, and shall grant in any proceeding before such Court, such relief, redress, or remedy, or combination of remedies, either absolute or conditional, and shall In every such proceeding give such and the like effect to every ground of defence or counter claim, equitable or legal in as full and ample a manner as might or ought to be done in the like case by the High Court of Justice. (36 ft 37 Vict. c. 66. ?®^ ? ™* J"^'cat"re Act, 1873.) See Speers v. Daggers (1885). i- i^- ft £i. o03. V i'.*°? ?^^^ "**" ^ ™"^« *° o' *'» respect of any goods or Chattels taken In execution, or in respect of the proceeds or value thereof, by any person, It shall be lawful for the registrar, upon the application of the high bailiff, as well before as after any action brought aaralnst him. to issue a aummons calling before the Court aa well the party Issuing such process as the party making such claim. aV the Judge shall adjudicate upon such claim and make such aer between the parties in respect thereof and of the costs . the proceedings as he shall think nt, and shall also adjudicate between such parties, or either of them, and the high bailifr, with respect to any damage or claim or, or to damages arising or capable of arising out of the execu- «on of such process by the high bailiff, and make such order In respect thereof, and of the costs of the proceedings, as to him 358 THE LAW OF INTERPLEADER. ■hall seem fit; and such orders shall be enforced in liKe manner as any order in any action brought in such Court, and shall be final and conclusive as between the parties, and as between them or either of th-^m and the high bailiff, unless the decision of the Court shall be in either case, appealed from; and upon the issue of the summons any action which shall have been brought in any Court in respect of such claim, or of any damage arising out of the execution of such process, shall be stayed. (61 tt 62 Vict. c. 43, 8. 167, County CourU Act, 1888.) Engliah County Court Rules (1889) Order XXVII. 1. Where a claim Is made to or in respect of any goods or chattels taken in execution under the process of a Court it eball be in writing, and thereupon the high bailiff shall forthwith send notice to the execution creditor according to the form in the Appendix, and if the execution creditor admits the title of the claimant to the goods or chattels, and serds notice in due course of post to the high bailiff of such admission, according to the form in the Appendix, or to the like effect, he shall only be liable to such high bailiff for any fees of possession or ex- penses incurred prior to the receipt of such notice; and the Judge may, if he shall think fit, on application by the high bailiff, make an order for payment of any such fees or expenses by the execution creditor to the high bailiff. Any such appli- cation shall be made in writing and intituled, in the matter ot the execution, and three clear days' notice in writing thereof shall be given by the high bailiff to the execution creditor. lA. (b) The high bailiff shall also forthwith send notice to the claimant according to the Form 179a in the Appendix, requiring him to make deposit or give security in accordance with section 166 of the Act IB. (c) Where the execution creditor gives notice in due time to the high bailiff as directed by Rule 1 of this Order, that he admits the title of the claimant to the goods and chattels, the high bailiff may thereupon withdraw from possession and may apply for an order protecting him from any action in respect of the seisure and possession of said goods and chattels, and the Judge may make any such order as may be Just and reasonable in respect of the same. Any such application shall be made in writing and intituled, in the matter of the execution, and three clear days' notice in writing thereof shall be given by the high bailiff to the claimant, who may, if he desires it, attend the hparing of the application, and if he attehd the Judge may, in :;ud for the purposes of this application, make all such orders as to costs as may be Just and reasonable. 2. Where the execution creditor does not in due time, as directed by Rule 1 of this Order, admit the title of the claimant to the goods or chattels, and the claimant persists in his claim thereto, the high bailiff shall apply for an Interpleader summons to be issueC and should the claimant withdraw his claim or execution creditor file an admission of the title of the claimant prior to the return-day of such summons, and at the same time give notice of such admission to the claimant, the Judge may. In and for the purposes of the interpleader proceedings, make all such orders a's tn costs, fees, charges, and expenses as may be Just and reasonable. ENGLAND. 359 3. Where any claim Is made to or in respect of any goods or «battels,_ token In ezecuUon or In respect of the proceeds or Talue thereof, and summonses have been Issued on the applica- tion of the high bailiff, such summonses shall be served in such time and mode as by these rules directed for an ordinary sum- mons to appear to a plaint, and the case shall proceed as If the claimant were the plaintiff and the execution creditor the defendant; provided that where the claimant has not made deposit or given security In accordance with section 166 of the Act, the time of service may. If the high bailiff so desires by leave of the Judge or Registrar, be such time as will obtoln a speedy decision on the claim. iA. (d) The claimant shall, five clear days at least before the return-day, deliver to the high bailiff, or leave at the oiBce of the registrar two copies of the particulars of any goods or chattels alleged to be the property of the claimant and of the grounds of his claim, and in case of a claim for rent of the amount thereof, and for what period, and in respect of what premises the same is declared to be due, and the name, address, and description of the claimant shall be duly set forth In such parUculars, and the high bailiff shall forthwith send by post to the execution creditor or his solicitor one of the copies of such parUculars. Any money paid Into Court under the execution sbf.ti be retained by the registrar until the claim shall have been adjudicated upon, provided that by consent of all parUes or without such consent, If the Judge shall so direct, an Inter- pleader claim may be tried although the rule has not been com- plied with. 6. The Judge upon the hearing shall adjudicate upon any fi'?*'? -'. the high bailiff for possession fees, and may. If he shall tmnic flt, order the same or such part thereof as he may think Just to be paid by the claimant or by the execution creditor. 8. In the event of the claimant of any goods taken in execu- r«° ??! making. In accordance with the provisions of section 168 of the Act. a deposit with the bailiff either of the amount of the value of the goods claimed, or of the sum which the bailiff is allowed to charge as costs for keeping possession of such goods unUl a decision can be obtoined, the bailiff may in his discretion delay selling such goods until the Judge shall have adjudicated on such claim, and for the keeping of such co' tlnued possession he shall be allowed such costs out of pock only as the Judge may order. 7. Where the claimant to goods token in execution claliu- aaniages from the execuUon creditor, or from the high bailiff L?"" .'" ''^■Pfic* o' tl»e selsure of the goods, he shall, in the particulars of his claim to the goods, stote the amount he claims for damages and the grounds upon which he claims damages. 8. Where an execution creditor claims damages against a high bailiff arising out of the execution of any process he shall. Ave clear days before the return-day, deliver to the high bailiff a notice of such claim, stotlng the grounds and amount, of such claim. 9. Where a claim for damages under section 167 of the Act is made against the high bailiff and execution creditor, or either of them, they or either of them may pay into Court money In full satisfaction of such claim for damages, and such pay- 860 THE LAW OF INTEBFLEADER. riii! rn' ment into Ckinrt ihall be made In the uune manner and have the ■ame effect, and the parties reepectively shall have the wune rights and remedies as they would respectively have if the pro- ceeding were an action in which the claimant was plaintiff and the high bailiff and Judgment creditors defendants. 10. Interpleader summonses shall be issued by the registrar on the application of the hig*i bailiff without leave of the Judge, aud shall be served on the solicitor of any party who acts by a solicitor. 11. Interpleader summonses shall be issued from the Court of the district in which the levy was made, and the execution creditor and the claimant shall be summoned to such Court 12A. (a) When goods or chattels have been seised in execu- tion under process of the Court, and any claimant alleges that he is entitled under a bill of sale or otherwise, to such goods or chattels by way of security for debt, the Judge may order a sale of the whole or part thereof, and may direct the application of the proceeds of such sale in such manner and upon such terms as may be Just. A duplicate of such order shall be delivered by the registrar to the high bailiff, who shall thereupon forthwith sell the goods or chattels pursuant to the order, and after deducting the expenses of the sale, and the taxes, and rent, if any, directed by the owner to be fwid, shall pay the balance of the proceeds into Court, and such balance shall thereupon be applied by the registrar in accordance with the directions con- tained in the order of the Court. 12B. (a) The order made upon the hearing of an interpleader summons shall be according to such of the forms in the Appendix as shall be applical>le to Uie case, and such order shall contain directions as to how any moneys paid into Court in the pro- ceedings are to be disposed of. 12C. (b) Forms 182 to 192, 196, 197 and 199 in the Appendix to the County Court Rules, 1889, are hereby annulled, and Forms 182a to 192a, 196a, 197a and 199a in the Appendix shall stand in lieu thereof. ISii. (c) Where the defendant in an action brought by the ai^lgnee of a debt or chose in action has had notice that the assignment is disputed as to the whole or any part of such debt or chose in action by the assignor or any one claiming under him — or where the defendant in any such action, or in any other action for any debt, chose in action, money, goods or chattels has had notice of any other opposing or conflicting claims to the whole or any part of such debt, chose in action, money goods or chattels — such defendant may, within five days of the service of the summons, apply to the registrar tor a summons against the assignor or the person making such opposing or conflicting claim hereinafter called the claimant. (2) The defendant must satisfy the registrar by affidavit according to the Form 134fi in the Appendix, that he claims no interest in the subject -matter in dispute, other than for charges or cosui, and does not collude with either the plaintiff or the claimant, and is willing to pay or transfer the subject matter into Court, or dispose of it as the Court may direct. On filing such aflidaTit, the defendant shall lodge with the registrar copies thereof for the plaintiff and the claimant. ENGLAND. 361 aunou«athl» rule has not been complied with. InteffieS^i^^^^^^^ the If ti? DuI*ntiff*'*HJ!;!i"°*'""' °' *•»« interpleader »ummon»-(o) order as i^^ti^J^^y ^''\;X'^ £\/^'l'^r ™?« »uch erer barred against the defendant, and all MrsoM oTiJ^nnl under him. and may make such order as to ^^ araiSt tS! of the plaintiff and the claimant between themselves or if thf f^T"^ •'" ?*** "°*'«' "»** he reSuShS Ws ctalm t Jl such order against the claimant as to cofte inrnrrfS kJ^*k® Wbl^Sit" ?^(°l7£t1.'S?^'''^ of^,SceTrfi^Sm7„t*L^ ?i!^«, , S*".".?' "'^ PlalnUff and claimant (and the ciwTf THC LAW OF IMTEBPLEADER. in and for the porpoM* of any luch proceedingi make all such orden as to costs and all other matters (includinc the repayment to the defendant of any costs paid by him Into Court and the disposal of any money, chose in action, goods or chattels paid or brought by the defendant into Court), as may be Just and reasonable. Interpleader in the London Mayor't Court. Upon application made by or on behalf of any defendant in any action in the Court, such application being made after declaration, and, before plea, by affidavit or otherwise, show- ing that such defendant does not claim any interest in the subject-matter of the suit, but that the right thereto is claimed, or supposed to belong to. some third party. wEo has sued or is expected to sue for the same, and that such defendant does not in any mannr collude with such third party, but is ready to bring into Court or to pay or dispose of the subject-matter of the action in such a manner as the Court may order or direct, it shall be lawful for the registrar to issue a summons calling upon such third party to appear in Court and to state the nature and particulars of his claim, and to maintain or relinquish his claim, which summons may be ^erred upon such third party in any part of England or Wales; and upon such summons the Court may hear the allegations as well of such third party as of the plaintiff, and in the meantime stay the proceedings in such action, and finally order such third party to make himself defendant in the same or some other action, or to proceed to trial on one or more issue or issues; and also direct which of the parties shall be plaintiff or defendant on such trial, or, with the consent of the plaintiff and such third party, their counsel or attorneys, dispose of the merits of their claims, and determine the same in a summary manner, and make such rules and orders therein, as to costs and all other matters, nA may appear to be just and reasonable. (20 ft 21 Vict c civil., s. 32, The Mayor's Court of London Procedure Act) When any claim shall be made to or in respect of any g(>ods or chattels taken or intended to be taken in execution under the process of the Court, or to or in respect of the pro- ceeds or value thereof, by any landlord for rent, or by any person not being the party against whom such process has issued, it shall be lawful to and for the registrar upon application of the serjeant-at-mace or any of his officers, made before or after the return cf such process, and as well before as after any action brought against such serJeant-at-mace or any of his officers, to issue a summons calling before the Court as well the party issuing such process as the party making such claim, and thereupon any action which shall have been brought in any of the Superior Courts, or in any local or inferior Court of record. In respect of such claim, shall be stayed, and the Court in which such action shall have been brOugSl, or any Judge thereof, on proof of the issue of such summons, and that the goods and chattels were so taken (n "Sxecution. may order the party bringing such action to pay the costs of all proceedings had upon such action after the issue of such summons: and the said Court shall thereupon exercise for the adjustments of such claim, and relief and protection of the said serJeant-at-mace. or IXOBIDA. rJSlf' *"■ offlw". »11 or any of the powen and authorities here- inbefore eonUined, and make such rules and deciaions ai shall appear to be Just, according to the circumstances of the case- H? ♦v**?. *^** "L*!* ■"*=•» proceedings shall be in the discretion of the Court (20 ft 21 Vict c. civil., s. 86.) -K. '*^»**^— B"l» of Interpleader are employed, and the eqult- ?? t?"»^'''*" *PP"<»ble are followed: sammlt v. L'Engle (1888). 1» Fla. 800. There is no statutory interpleader. , 0««l^— In Georgia the foUolring Code prorisions have been enacted (Code 1896). f„T.H^*°° ^***- Whenever a person is possessed of property or u« :,°f """".'.J*'"^ °' **"'y to ^»»»''»» "ore than one pereon u L?,^^i A *••* *'•*•"■ "■* °' ■»<=*' » character as to render U doubtful or dangerous for the holder to act. he may apply to equity to compel the claimants to Interplead. «n^?L*l*'-,:.^I"y petition for interpleader should be ISn ,;v ** ■»»o«W show that the peUUoner is not in collusion with either party claiming the property. Section 4898. If. in the progress of any proceeding in equity. ^JS*'«nK**1".*"'? *^" necessity for parties to interplead, it may order such interpleader as collateral and ancillary to the main 82 Qt!*63*'*'"" ^' ^'™" ^*'**^' " °*" ^*'' *"'*"' ^- *'"** <"'*^- l.l*^T!J!!!5!ii**^r^'~?y chapter 23 of the Acta of 1876 these nli^Hl! *^2F^ «^f * *■ •'""^ » transcript of the English Inter- pleader Acts of 1831 and 1860. 1 ft 2 Wm. IV.. c. 68. mcs. 1. 2 8 15^ M ' *' " ■1'°''** to ^''^ defendant in any personal artion ^« J^l'^w».°°i°*1''*^ 1° ">« '"Wect of the Stat, but rtowsttot Slrd Srtv^w^>.*' '''■"5"* "r °' '"PP**** to belong to some -nH -£^/ ''*'° 5"? ""*'* °' *" «»Pe«t«i to sue for the same; ^^A^ ^ marshaU and sheriffs when conflicting claims ar4 ^i„„ *K *^ ^^ "^^^ *»•'•'» 1° execution whether an action has been brought or not. See Compiled Laws of the Hawaiian Dependency, published in Honolulu (1884) . page 381. In 6 HSi R Joi. *** ^ ^"= Cartwright v. ffo& (1886)! «~»J^*'~;T.^® ^^°*® °' this State (1887), has the foUowluK proTlBlon relating to Interpleader, '."-»«."« loiiowing i«» ^^°'^ ^^^\ ^ defendant against whom an action is pend- Inv ti^^^fT^""^ °' *°' "P**'***' »«"<««» property mS at ?« ♦•,„ «'^'°" .■°"^*'' "P*"* affidavit that a person not a party h^« t ^ "°° ?'^®" ****"* •»'"' «"'» ^thout any collusion with «J^; notT* ♦'^ "P°u **** '*™'» contract or for the same property, r^^ S^l^ *° such person and the adverse party, apply to the Court for an order to substitute such person In hlTplace and iJ r™f5%H"° '~°»,»*»'lllty to either party, on his deposltlni JL^T^ the amount claimed on the contract or delivering the l^A^^^n^ ^ ^"'"f to such person as the Court may direct, and the Court may in ita discretion make the order. Section 4110. Whenever confllcUng claims are or may be made upon a person for or relaUng to personal property, or the performance of an obligaUon. or any portion thereof, such TBI LAW or INTEBPLBAOKB. penon mmj brfns an action against the oonflletlng elatmanti to compel them to Interplead and litigate tbelr aereral claims among themaelTee. The order of rabetltntlon may be made and the action of Interpleader majr be maintained, and the applicant or plaintiff be discharged from liability to all or any of the oonflleU'ng claimants, although their titles or claims bare not a common origin, or are not Identical, but are adverse to and Independent of one another. nilaeU.— In this SUte bills of Interpleader are employed. Schneider t. SHbert (1869). 50 IlL 284; yewhall v. Kaatetu (187S), 70 111 166; CogMteell t. Arnutrong (1875). 77 111. 139; LMtnittoM v. Bank of Montreal (1893), 60 111. App. 662. There Is no sUtntory Interpleader, althongh In the procedore known as " Interren- tlon." a borrowed use Is made of the terms " interplead." " In- terpleader," " by way of Interpleader." which makes some con- tusion In the Cteneral Digests. -Act 14 of 1882. chapter 83, Interpleader. 470. When two or more persons claim, adTorsely to one another, the same payment or property from another person, whose only Interest therein Is that of a mere sUkeholder, and who Is ready to render It to the' right owner, such stakeholder may Institute a suit of Interpleader against all the claimants for the purpose of obtaining a decision as to whom the payment or property should be made or delivered, and of obtaining Indem- nity for himself. Provided that, if any suit Is pending In which the rights of all parties can properly be decided, the stakeholder shall not Institute a suit of Interpleader. 47L In every suit of interpleadw the plaint must. In addition to the other statements necessary for plaints, state (a) that the plaintiff has no Interest In the thing claimed otherwise than as a mere stakeholder; (b) the claims made by the defendants severally; and (c) that their is no collusion between the plain- tiff and any of the defendants. 472. When the thing claimed is capable of being paid Into Court, or placed in the custody of the Court, the plaintiff must so pay or place It before he can be entitled to any order In the suit 473. At the first hearing the Court may (a) declare that the plaintiff Is discharged from all liability to the defendants in respect of the thing claimed, award him his costs, and dismiss him from the suit; or, if it thinks that Justice or convenience so require, (b) retain all parties until the final dlspoBition of the suit; and. if It finds that the admissions of the parties or other evidence enable it. (c) adjudicate the title to the thing claimed; or else it may (d) direct the defendants to Interplead one another by filing statements and entering into evidence for the purpose of bringing their respective claims before the Court, and shall adjudicate on such claims. 474. Nothing in this chapter shall be taken to enable agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to interplead with any persons other than person making claim through such principals or landlords. INDUWA. 865 btoJS^ iS*!? ^?.^L^ Propwlr iMUttttad. the Court mar •nit. the Court In which th« soit i^UiiBt Um ^S!kllJ?M^!^ . S^!» .t^-'" tho interpleiMlor suit In teTonr o£ thr«Ukehfliitr ISh ."?. bntlKn? J?Vr"li ■?/*•''•* "•' "^ Pn^l5^T Vi .«?* J?li' '£• "A*" **" ■■• "'•y »" »ot provided for in tli«" •Jt. tb«, m«y be «Id«d to hi. eott. lncurr«I in the inSrp?e3*- Bee Bombap. etc.. Ry. r. Satoon (MM). 18 Bombey 231 nnoJnfHS?^* J. ^ defendant agalnit whom an action ii pendinc SirJ^'to S^l "^T *"7"" '*»°° »ffldavit that a perwn not a 2SLt hi«'.^***°'.'^'* T*"*""' collurton with him. makes aivlnat him a demand tor the same debt or property uoon due ^mJ^ 1.?!?^*** !?*S^*.*"** ■"«*' ^"on in his place and die- ^•rw him from liability to either party, on hie depoalUna in «^ SJ* "2?"°* °' "»• «>•" o"" deliverin* the property or itS ▼alne to each perM>n as the Court may direct andth« » •■ »t may direct, and J1«H.«? .l^T^fv*^" ^^ «"»«"»•«» Wb claim against the de- fendant and in the meantime stay the proceedings. If such third Si ™J^ S*"!*** "jf" ' ~'"' *»' ">* *>'••»•'■' '»»'« to appear, the 2SSLT/*t'*'"JJ.**" ^'Y^ *" *•» «'»»» »n respJctto the Slwf^n^** *^°° ?«^"* "»• defendant therein. If such third pwson appears he shall be allowed to make himself fiftP^if^ "^ ^^^ "S**"" *" "~ o' the original defendantTwho Bhal be discharged from all liability to either of the other '^^ J? respect to the subject of the acUon upon his compli- anee with the order of the Court, tor payment, deposit or deli- SecUon 3488. The provisions of the last section shall be awlicable to an aeUon brought against a sheriff or other THK LAW or IXTBRPLBADEB. I ofloar tor th« rMorary d pcraonal property Ukmi by him andar attAchniMt or «i«eittlo0. or (or th« tkIuc of saeli i»rop«rty to Ukan ud Mid by him. and th* defradaBt In any tach aeUoa •hiai be «imi«d to the b«M«t of th«M proriaiona agalnat tha party la whoaa Cavonr tha attaehmant or axaentkm laanad. upon aihlbltlnc to tha Court tha proeaaa ander which ha actad, with hla affidavit that tha pnverty, for tha raeoTary of which, or Ita procaadi, tha aeUon waa broosht. waa taken under each proeaaa. Section S4M. In an action acalnst a aharlff, or other oOeer, (or the recoTery of propnty taken under an attachment or execution, the Court may. upon the application of the defendant and of the party In whoae favour the proeaaa laaued. permit the latter to be aubatltuted aa defendant, auretlea for the coata being clven. A sheriff may Interplead under aeetlon S489 after he baa dellrered an anawer In the action against him notwithstanding sections 3487 and S4U: Bixbg t. Blair (1881), M Iowa, 41«. belaaA in 1848 adopted the Bngllsh Interpleader Act of 1881, by 9 ft 10 Vict I., c. 64, sa. 1-7. In 1877 this Act was superseded, and the provisions In the Bngllsh Judicature Act of 1878 and 1875 were adopted, the Irish Aet being 40 ft 41 Vict I., c. 67. s. 28 (6) and Rule 12 in the Schedule. On June 1st. 1891. the present English Rules were adopted and the Irish Order LVII. is practically the same aa the Bngllsh Order LVII. Jayaa.— Section 62 of the Code of Civil Procedure of 1891. A person proceeded against as possessor of a t .ng, which he asserts he possesses in the name of a third person, can. If prior to the oral proceedings in the suit he designates the third person and applies tor the summoning of such person to make his declaration with respect thereto, refuse to proceed orally with the suit until such declaration is made or until the time appointed for the third person to make the same has expired. If the third' person disputea the defendant's assertion cr fails to declare himself, the defendant is entitled to satisfy the plaintllTs demand. If the assertions of the defendant are aeknowiedxed by the third person to be correct, the latter is enUtled, with the consent of the defendant, to take over the suit in his place. If the third person has taken over the suit, the defendant is on his application to be permitted to retire from the suit The decision, so far as it concerns the thing itself, operates, and is capable of execution, against the defendant also. J.— The equitable principles of Interpleader are recog- nised, while relief by sUtute is granted when an action has been commenced by one of the claimants. General Statutes, 1899. Section 4287 (43). Upon affidavit of a defendant, before answer In any action upon contract, or for the recovery of per- sonal property, that some third party, without collnr-ion with him has or makes a claim to the subject of the action, and that he is ready to pay or dispose of the same as tbc Court may direct, the Court may make an order for the safe keeping, or for the payment or deposit In Court or delivery of the subject of the action, to such persons as it may direct, and an order re- quiring such third party to appear in a reasonable time and KEOTUCKT. 867 •Iiertff or •jneli othar pwwn m the Court mar direct f»n to ^^ "'!!.£2"* "»•' ««"•'• »>"» be red of »I1 cUtaJn retoeS SSLi^ir*.'^'' '*•*•" •>• ••••" be .llowed to make himw f fhi^'^*^" i*** J?*;?' *° »•" <" tbe oriclnal defentUnt ^o •ball be dlsebw-ged from all HabiUty to either of the other SS^ti'th "im.*" *••.• '.""^^ °' the' action, jjon hi. ^mp" dSl?re5^^t ""^ '°' "•• »*^"t' deposit or be S^I^Kii*^ ^"*- J*"* Provlilon. of the last section shall Sl«?'JS fhl^-^L"**""."™"**** »««»1"* • "berlff or other omeer for the recovery of personal property taken h» him !St«?2i"*»«^?*"L'"2 *"• defendant In any su?rictYon^ban bS enUUed to the beneflt of those provision. a«alnst the partr K whose fkvour the execution issued, upon exhibiting to the Surt ironSSTXr^h'*" ''•""•' ^% •^«» '^th hi. aSdaSt tSat S 1. KJht v."! "«'^«1 °' *blch. or lu proceeds, the acUon 1. brought, was taken ander auch process. eaul!?Ul!?rfrX»' «*"*'. ^*?*? *?• principles of Interpleader In miiT 3 S!hir?Ai' V'"" ''■I? '^° followed: /•««<» V. //„,fflrd I bI'J. /«5«.'®V n 'T ''• **""* <'*38). 7 Dana 406; «fnW.«,/ J^S'to^i^fi^Uow^sr'- "'• *^"°° '•» °' "•• ^'^" <^« °' Upon affldavlt of a defendant before answer in an notinn SSS2.n~wS??; r/°' ^-f '■"=°^*''^ °' Per«o'Xp~irt"th2°? h?^»rirJi I' "V^ * **"f *" *•'* »«"on, V thout collusion with I£nt^,^dv^^v'° *^ ""•^•? "' "'*' «^»°°' •">«» that the «^^ ^^'"'^ *° ***^ *"■ d'SP " theieof as the Court may direct ^f^"^!^^ "•J'* " °""'»«'" '»'' *»»• "fe-keeplng of "he .?bS Siiwll^°°' °/ ""■ •*" wyment or tfaposit in wurt. or for l2 deUvery to such person as the Court may direct, and an ordw requiring such alleged claimant to appear InTrMsonaWe tln^ £lni^^ w.!;.***^ "*• proceeding. If such alleged clalmanl «il^*..*T^***uT*"'w* **'Py *>' **>• order, fall to appear, the Court may declare him barred of all cUim in respect toTe subjert^ the action against the defendant therein. If he app^ir he shall t^e^ortJJ^i*^ f 'J* ?*•"!•" defendant in the artloTIn lieu of S e?S?r of tlfr^fhl.*' ''•'^."•'•l' *"' discharged from all liability .^.«„ ,f, ^ other parties in respect to the subject of the S^n?"^" his compliance with the order of the Court for the payment, deposit, or delivery thereof. toi[dsi««».— The principles applicable to bills of Interpleader V ^^^t^if^^^^'^^^^J'^ *^® ^°»"^ °' this State: Louisiana !..» onr ^^S5?^' ^* ^*d. Rep. 20; Freyhan v. Berry (1897). 49 La. Mwi^ ^K There Is no statutory Interpleader, see Morris y. Cain U883), 36 Lou. Ann. 769, as to the remedy by a proceeding in the nature of a bill of Interpleader. ' ' • ».™..-«!umg m MUme.— Bills of Interpleader are made use of, Oardiner v. Emerson (1898), 9i Me. 530. There is -r interpleader statute. 868 THE LAW OF INTERPLEADER. Maaltsbs.— The Queen's Bench Act, 1896. Section 39 (5). In case of an uelfnment of a debt or other chose In action, if the debtor, trustee or other person, liable in rpspect of the debt or chose In action, shall have had notice that such asiignment Is disputed by the assignor or any person claiming under him, or of any other opposing or conflicting claims to such debt or chose In action, he shall be entitled if he think flt to call upon the several persons making claim thereto to Interplead concerning the same. Rule 894. Relief by way of Interpleader may be granted (n) when the person seeking relief (hereinafter called the applicant) Is under liability for any debt, money, goods or chattels, for or in respect of which he Is or expecU to be sued by two or more parties (hereinafter called the claimants) making adverse claim thereto, (ft) Where the applicant is a sheriff or other officer charged with the execution of process by or under the authority of the Court, and claim is made to any money, goods or chattels, taken or intended to be taken In execution under any process, or under a writ of or order for an attachment, or to the proceeds or value of any such goods or chattels by any person other than the person against whom the process issued, or by any landlord for rent, or by any second or subsequent Judgment or execution creditor claiming priority over any previous Judgment or execution process or proceeding, or by the party against whom the process was issued claiming that such goods or chattels are exempt from such seliure or sale. Such application may be mndo within thirty days after receipt of notice of such claim, and not later unless allowed by a Judge on special grounds. 895. The applicant must satisfy the Court or a Judge by affidavit or otherwise: (n) That the applicant claims no Interest In the subject matter In dispute other than for charges or costs; and (ft) That the applicant does not collude with any of the claimants; and (r) That the applicant Is willing to pay or transfer the subject matter into Court or to dispose of It as the Court or a Judge may direct 89«. The applicant shall not b« disentitled to relief by reason only that the titles of the claimants have not a common origin, but are advene to and Independent of one another. 897. Where the applicant is a defendant application for relief may be made at any time after service of the stotement of claim. 898. The applicant may make a motion calling on the claimants to appear and state the nature and particulars of their claims and either to maintain or relinquish them. 899. If the appllcaUon is made by a defendant in an action the Court or a Judge may stay all proceedings In the action. 900. If the claimants appear -. the motion the Court or a Judge may order either that a .laimant be made a defendant in any action already commenced in respect of the subject matter In dispute in lieu of or In addition to the applicant, or that an Issue between tho claimants be stated and tried, and in the latter case may direct which of the claimants Is to be plaintiff and which defendant. 901. A Judge may Uke evidence upon and dispose of the merits of any such claim In Chambers, and subject to appeal MANITOBA. 869 •ummary maunw aad on such ttrm. decide the Mune in « •• may be Juet -.- »„«. 1^ Z KSuu! r"S'rt''or\'''irr *" "*• "«» ^he ft.cu queetJon without directing tfaVtrUi^?** ?■'' •""""• "•«'«>• t»e • i»s ^i^■Slc^2r'th"^s•:slr•v■■"• »•' »« t^ed by c«tlon trial by Juryh« LSn ^i, ^*'J "•* °"* ««»«» *hoM .ddII- tbe Jury fee r';^^" ^tlolT/'!^^'^^^^ r^lpt therefor with the rwS?rt „?h *"*. •^"'''' ^"* »«»«> <»• the When the aue 1. ciuei onTr tVla thTnL^/""*? "■y- •-^ «;«Pt ror .pecla. r^.,, .JA^e^^t \t ?^tt t'M*.!^' .ubj2rti\i"pS'irtre*.re':iren?:n?"°K^ ^°"» •»>»" •-« r° - i^tWder-iS^^ "• -»^ £f rthi re'= ?H S« -- -^ rul-Mi. and ahall be imide to'th« Vm! i ^ ■"''^•** *» »»>• •*">• 8W. Subject to aoDeal or m„M ' • SVer *^- ^"~ -^ '» P--.^r„S/ry!?rl~S «.otK c'i„in;'';:rht^ri»pj^^^^^ -«"> • »«tice of claim, doee not appear In d\^u*"* "•'"*•»«> "f rellnqulah hU •PPeared neglects ir^^uai to ««n?i the notice, or having •fter hia appearance, the cSurt ^^?^I ''"'* •"'' «"''>•«• n»»de declaring him and aU pSjSS. cu^«?! may make an orde? tow-r^ agalnat the app ica«^Sd wSr „."* . I"''.''" ^'^ '"'•w but the order ahall not affec? thJ^?^? claiming under him; between themaelye.. * "** "«''*• »' the claimant* ai by .'^heJS*o7oCr%%c2'rhi"gS':, '" «-««"on ««• of the Court, and any olalmS^ Tii*'' *'»!,««c«tlon of pro- underablll of aal, or ofherw S°to iht"!S2 *'"'* •"• '• ""««d. ?hr^?»a'Sr!t;^-rS^^^^^^ --.- --••"•rh-mrnlT^ -„ -i^^^^^^^^^^ £ Jud^to^X* by'S,^X%.S;if!?. ■«'»»"•• »° »"• Court o, creditor decline, to Join Tn wnti^ST^L''*'', ^"^ "^ ««.uUon «'•'»•«». the Court or Judw may dir^/|'h'.»''''''"v °' *•»• »«>^«"« be excluded from any beneut whr^^^ *''*'. '"<* oredltort ahall cont^utlon of such cial^ ' "'"'' '"•'^ "« ''•«•'*•'» from "" pnerii: ^uile^Ter2^.'".'M''°r.i!l•• *"• '""* "^X. "«» In jud- doe. not d.2S:"oV2rw^-?.^-:jff ^.j«^ ?■ Infill ^IH 37a THE LAW OF INTERPLEADER. ■. I certificate of bis finding, from which there may be an appeal without entry of Judgment or further proceeding. Vll. Where in any interpleader proceeding it is necessary or expedient to make one order in several actiofiror matters, such order may be made by the Court or Judge before whom the interpleader proceedings may be taken, and shall be entitled In all such matters or actions, and any such order (subject to the right of appeal) shall be binding on the parties in all such actione or matters. 912. In case a sheriff has more than one writ at the suit or instance of the same or different persons against the same pro- perty, it shall not be necessary for him to make a separate application on each wr<^ '>r in each action; but he may make one applicuilon, and m ; e all the persons who are execution creditors parties to sa.u : plication, and the Court or Judge before whom the application is made shall Uke such proceedings, and make such order thereon and therein, as if a separate appli- cation had been made upon and in respect of each writ. 913. In case there are writs or orders from the Court of Queen's Bench, and one or more County Courts against the same goods, and whether at the suit or instance of the same plain- tiff, or of different plaintiffs, i^e application for such inter- pleader shall be made to the Court of Queen's Bench or to one of the Judges thereoi. or the Referee In Chambers or a Local Judge, and such Court, Judge, Referee or Local Judge, shall dispose of the whole matter, as if all the writs against the goods had been issued from the said Court, and in such case the County Court shall have no cognizance or jurisdiction wliatever in the matter 914. In any such case as in the next preceding two rules mentioned, the Court or a Judge thereof shall make such order with respect to staying proceedings on the several writs, or with respect to directing a sale of the goods or property in question as may be necessary, and with respedt to the final dis- position or order to be made as to the goods or the proceeds thereof, and in all other matters whatsoever, as fully as if all the writs had been issued from the said Court of Queen's Bench. 916. In case an issue is directed to be tried for the deter- mination of an adverse claim in respect of property seized or taken under an order for writ of attachment or writ of execu- tion, the sheriff (or other officer) to whom such order is deliv- ered or such writ is directed may tax the costs incurred by him in consequence of such adverse claim, and may when taxed serve a copy of the certificate of the same upon each of the par- ties to the issue; and tne attaching or execution creditor shall forthwith pay the same to the said sheriff (in default of which payment a writ of execution may issue to enforce the same), and if BucceitstuI upon the issue shall tax such costs among his costs of the cause. 916. In case of any sucb proceedings being compromised between the parties thereto, such costs of the sheriff or other officer shall be paid by the party, plaintiff or defendant, by whom the execution or 'attachment was sued out. 917. In case after the seizure of any property under attach- ment, or in execution, an issue is directed, and the property •elzed remains, pending the trial of the issue, in the custody of MANITOBA. S71 AM whi^S^ "^nroT °^^ T.^^^£! •»-•,«>« court from JMued. or any Judge thereof m^^o^J'' °'' ^" °' execution to the "hertfl orSr offl^r ofi.Li,"''''* "i" °''*'*'" '<"• Payment •bout the cuBtc;^rX?5foperty i thTcou.5*' "■?"."•* '° "* reoBonable. and the sheriff nr^i!?. - ^"""^ °^ -^"^se deems upon the property tor nSIent n/ff °"««^«ha" have a Hen Ittue being decided aLS^rfhi mo,""* '^T '° ^''^ ^^e^* <>« the '° '^S'^ Vr *"-^«» ^^^^^^^ "'' *° *'* ^''*°' c.Uon^hTordef to?"?hVLmrsh\'.."T '^^'^ '»t«rPl«ader appll- Of the parties to such isISS tte n.!fA °"* *\''***" t**" ""^e* description of the »ooS» ™^«-; ™*"®'^ *° he tried, and the order shall 2 seftKy the/udsr^"" ^'w^'^^k'" '»"«'"°°- Such copy thereof shall be filed wfth ft ^^®°/''® "•*«'■ *» °»ade a filed upon the InterpleJder a?D5ci«on Q*''*^^" ""^ °*^«^ »»»«" and all affidavits and panlrs reSr;^ ^""^^ ^^^ °' *•>« <»•'»«'" transmitted to the office of th«ro«5 wr***'*^'**" ^ forthwith Place. No formal issue is to b^rtTin'^''"® *''® *"■'*' '» *« take copy of the or^er to? isLe «^n ^""^ "5 V "^«<*' •»'"* *»»« "id Shall be the record for Me at tt« tn^ ""^ *'"*'»*** *^«'-«o'' »°« trial of an issue Is ma?« fii „f Jr*"'Vv** ^° " *•»« order for examination iS the mtnniJ ^w«? /''*''®*° "^"^^ ^ ""ble to examination of parties No oth«/!.^'°'? Provided as to the chattel, seized akiounte to the «„™„f*°^ ^e^"^ °' '^°^<' »"« more, in which cm^ such lis? «h^ii L'*""" ^""''''"^ '*°"*"' <"- '''' '^ SL""<''» vXe Shan S sStS "* unnecessary, and only execSton^^r'a ^o'f o^order tor .T T''^' "»"*«' «» ^^^ o^ Court of QueenTfiench anS J fnfi^f'"!J*°* *""«^ «"* «' the case the value of th« »«i5 fJ? Interpleader order is made, in opinion o?S: JuaJe Tot^^L^'t^'^f '"^ ^°^' "^ tie ceed the sum oT four hundred d^K "»'^1°« »"ch order. ex- Issue to be tried shall diP«2 J?.* „ "?• the order directing an County Court of the jSfl?*n.*H®.*""f "•'»» ^ tried in the aud Chattels, orlome%i^tmtleSit^±J^^''\ '""='> ^'^'^ County Court as the Judge orTtLrnpr!!*'*' 2!" *° """"» "ther may direct, and in such ^e th« Lnt T .f't^*"* ""<=•> "'•"er County Court. ^® *'""® "''»" he tried In such and dVaw^n"S un'de^l^e ifstXidr "^''" '"^^^ »'««° "ttled the proceedings shill be carried o^fn"""!*' "J? *° ^'»'<='' Po«°t Bench, a copy of the 8am« thJn k— '". ***® C*'"'"t of Queen's County Courtf and therTwn such^J,- h'^.^'l*''" ^^''^ °' th^ said County Court and^n th^ nT^,!.*"'" ''T""^ "^ ™»"« «» Courts Act " as to Jh« f^i.f . Provisions of " The County -S&il 372 THE LAW OF INTERPLEADER. I' I Connty Court aeoording to the proTlaions ot " The County Courts Act" The Judge ot said County Court shall after reviewing, and, if neeeflsary. correcting aueh taxation. Indorse upon the copy of the order for said issue, filed as aboTe provided, tht Judgment of said County Court upon said issue, and shall also certify upon said copy the amount of costs so taxed. The clerk of the County Court, after the time for appealing has expired, or sooner if the Judge of such County Court shall so order, shall deliver to the successful party the copy of the order for such issue so indorsed, who shall file the same in the Court of Queen's Bench. The provisions of Rule 910 shall not apply to issues tried under this and the last two preceding rules in a County Court All subsequent proceedings in connection with the order for such issue shall be carried on in the Court ot Queen's Bench. 923. Any common carrier or other bailee goods and chattels whether under a special contract or otherwise howso- ever, upon whom any claim is made to any goods or chattels in the possession of such carrier or bailee by any dne or more claimants, whether such claims have or have not a common origin, may either before or, at any time after action is brought by any such claimants respecting the said goods, upon affldavit showing how the said goods and chattels came into his possession, the nature and extent of any Hen which the said carrier or bailee has upon the said goods and chattels for ser- vices rendered and money advanced thereon, if any such claim exists, and the value or supi>osed value thereof, also showing wEb said claimants respectively are, and the nature (as far as said carrier or bailee knows) of the claims respectively made to said goods, and that he, the said carrier or bailee, has good reason to believe, and does believe, that if he delivers such goods to either of the claimants he will be sued by the other or others of them, and that he does not collude with any or either of the parties claiming possession of said goods and chattels. apply to any Judge of the Court, or where the value of the floods does not exceed four hundred dollars to any Judge of a County Court of the Judicial division within which such goods are at the t'me of the appUeation. by motion calling upon all the parties respectively claiming the said goods and chattels to appear and state the nature and particulars ot their respective claims and to maintain or relinquish the same. (3) The Judge or County Court Judge in disposing of said application shall have and exercise all the powers given to a Judge in interpleader matters. ^ ,^^ 924. In cas6 any such claimant being duly served with notice of the said motion does not appear to maintain or relinquish his claim or right or refuses to comply with any order made after appearance, the said Judge may declare him barred from making or prosecuting his claim against the saio oarrfer or bailee, saving the right or claim of such party against the person or party to whom, undev the said order, said gooas. or the proceeds thereof may be delivered, and the said Judge may ma^e p- ^ «wder between the parUes to the said appllcatlop as may s« ist. . . 9M. i: -aall not be necessary, in order to entitle any nuch ««rrlw or bailee to relief by way • " Ml... 45: V»«i4 iVw^^elSS* ^* ^'^' °' "*2 •"» "»« '°"o^ .rtfJn*.,^^'' affidavit of a dereiMfant before plea filed in any SJil^ ^S?°^ contract, or for the recovery of iwnwMl propert/ ^i **»""•<» party, a resident of this State, without oSfffin ffiheTir^dvV'S'" ^"-f''* """J"'* Of The artl^^aSS SS SlrJrt Sf '^cS^rt J..V ™ "r** °' ^^'^ "»"« " ">« Court ^«- ™r»ci, me Court may ni'\ke an order for the safe ke«.n- ^4 Of payment, or deposit in Court or delivery^ of ti^ wbject matter of the action to such ^rson m it may llrS^ «iJ^ ♦v "^o°able time and maintain or rellnqnish his claim SSn^all to''.™«!l°*;K "^ ""*='» *•»•'*» P^rty- being BuSmonS Sm ^^ ;,l!5?*> *"■ ,Oe»^enr thereof. If the claim of such o^^L^ "•"^* ''°*'***' *■ *° *be residue as in to ii?aSon'KraSn?t%'S«rS^S*" ^^ *''?"'*"• Jhe'pfes^'aSSrSr to'^t'^llr^iS** *° ""'^ ^'""^ *"'^'«" non-r2;id"n{''of''thiXti°*"^"''' execution or attachment be a title to or an InterMt^ tn^?«^l^^ *"■* *°°* •'" P"""" ^aims Kr.sroU° 'd^ei^'onrSsitT Ts?c*h d^ £« lXcoSS° he".hf,f ?.^'°^' "•* "^ irnf sUTay^ mon^Sj i?Ser''SyMh";M"L"^Sd'* ^'"''"'^ '"'^ »•""» "^ ^1 976 THS LAW OF UiTIBPLKADEB. 2144. I( the claimant ImIiis duly •timmonad. fall to appear, tha Court shaU adjadge the money, debt or property to the plaintiff. If he appear he shall propoond hie claim to the money, debt or property In writing onder oath; and the plaintiff may take iHue thereon, and the eame shall be tried and determined aa other lesnee; and If the lasne be found In favour of the plalnUff, judgment shall be rendiired for him against the garnishee, and also for the costs of the Interpleader against the claimant; biit if the Issiie be found for the claimant. Judgment shall be rendered in his favour against the garnishee, anu against the plalnUff for the costs. When the garnishee has paid money Into Ciourt, the Judgment shall direct Its payment to the party entitled thereto, and a Judgment therefor shall not go against the garnishee. For remarks on the Code, see Moore v. Ernst (1877), 54 Misa. 642; HortoK t. Grant (1879), 66 Miss. 406; Ettringham v. Handu (1882). 60 Mlaa. 834; Kellog v. Freeman (1874), 60 Miss. 127; Morin T. Bailey (1878), 65 Miss. 670; Dodda r. Gregory (1883), 61 Mias. 861; Porter v. West (1888), 64 Mias. 648. Mlsso«alr-ln this State the eauitable principles of inter- pleader applicable to blHs of interpleader are followed: KHng v. Oreen (1846), 10 Mo. 195; Hathatvay v. Poy (1867), 40 Mo. 640; Monk$ ▼. MUUt (1883), 13 Mo. Ap^. 363; Boyer t. Hamilton (1886), 21 Mo. App. 620. There is no sUtutory interpleader, altbough the term interplead is used in connection with the practice of intervention. See section 417, Code of 1899. Momtaaa.— In this State bills of interpleader are resorted to: Perkins v. Gwy (1873), 2 Mont 15. There la alao the following aection in the Code of Civil Procedure (1896). . Section 688. A defendant agalnat whom an action la pending upon a contract, or for apeciflc personal property, may at any time before anawer upon affidavit that a peraon not a party to the action makea agalnat him, and without any colluaion with him, a deman3 upon auch contract or Tor auch proi>erty, upon notice to auch peraon and the adverse party, apply to the Court for an order to aubatltute auch p««on in hia place, and diacharge him from liability to either party, on hia depoaitlng in Court the amount claimed on the contract or delivering the property or Its value to auch peraon aa the Court may direct, and the Court may in ita diacretlon make the order. And whenever conflicting dalma are or may be made upon a peraon for or relating to per- sonal property, or the performance of an obligation, or any por- tion thereof, auch peraon may bring an action against the con- flicting claimanta to compel them to interplead and Mtigate their aeveral claima among tbemaelvea. The order of aut' :itution may be made and the acuon of interpleader may be maintained, and the applicant or plaintiff be diacharged from liability to all or any of the conflicting claimants, although their titles or claims have not a common origin, or are cot identical, but are adverae to and independent of one another. Hebraska.— The following are the provisions relating to interpleader in the Code of Civil Procedure. 1896: Section 48. Upon the affidavit of a defendant before anawer In any action upon contract, or for the recovery of persona' pro- perty, that Bome third party without colluaion with him, ^ia or ■;» ■* ITKVAOA. 877 makM a elalm to th« rabjaet of the acUon. and that he la readr to pay or dlspa«» of tho aame aa t&a Ck>urt mS d^rSstttJ SJ-K**!!!* *" ^'f"^ <"■ •»•"▼«▼ of the aobject of the action to 2Sir*2r?^JIf *.* •"' *"**• "« " order requlrlSaSch third P»rty to appear in a reasonable Ume and maintain w reUnaoieh ISvJJi^^th'^"* the defendant If .uch third ?LSr.2SS V^ «*?fc*;?'*'L*" "*• '"^*' "y *»»• •J»«rtff. or roch other 6^^M^L?^ fV "V'/**' ^^ ^ •»»«"' t»»« Court STJ declare him barred of all claim in respect to the aublect of thi Sf.hMi?^°:n"'l?t'*°'**2* ""•"•"• M«chtBrdSStTa?piS; uln^tH^rH^i to make himMlf defendant In theicttoSrS; lifwm, ♦ original defendant, who ahall be diecharged from all i?th".*lJl?««"*""' °'v?'* °"»" •*rtle« m respect to the subject ^T^L^2^ "i^? ^^ complla^oe with the order of the Court for the payment, deposit or delirery thereof. aMl?;!^i«°*« !: "^ « »™'*10'» of the last secUon shall be fnJ'Af! iL*° •" f"°° brought against a theriff or other officer hl^ I„r»i^*.,2:°T^! ?' ■"'"» property so taken and sold by 5«Li*^ ♦^^ defendant in such acUon shall be entitled to the benefit of those provisions against the party in whose favour the SK'k" ^''JJff • "i!!?? "bibitlng to the Court the process undSr 7^vJt\^! ^^ h^ •"'**^** '•»* *»»« property, for the recovery of which or its proceeds, the action is brought, was taken under such process. m»"u»ui, wm #«. ^""^ "• 1° *? »«tlon against a sheriff, or other officer. ^«i-^L "if^Ju'^ ?'. ??2^rty token under an execution, and ISEt? *"^.^? plaintiff m such action, the Court may upon application of the defendant, and of the party in whose favour A^*.-!J!^'J"°'' *5?**l' P®™" *•"> '■**«' to be substituted as the defendant, security for the costs being given. See Hartford Life Amuitif Int. Co. v. Cummitmt (1897). 60 Neb. «_ ''•▼^*^— In this State bills of interpleader are made use of • ?ZaI,^:ST^ «'**We principle, of Interpleader are followed: IFerterwW T. ^temaa (1M8). 2 Green. 825; Blair r. Porter (IMl), il!£'thli.SJf5i^wgS-: " •*''"*°'' *•"•"■*'"' *• '" '"**• .« iI!!iILl" !l" ««^ Jn which the Court of Chancery ahall decree ISL*?'*?l*^*T.^ ^^^^ "»• defendant, lo a bill of Inter- pleader, the Mid Court .hall award to the complainant a couumI tee commenaurate wltt the mrice of hi. couumI in the cauM, S.K T^i!*««."'*w"" °' *<**■ »°* collected therewith. OenL Pub. Law., 1898, chapter 186. A,^^*^ ?f^*^ ^ °** Interpleader irtatute. and being . luri.- dlcUon which retain, the Common Law a. the rule of practice doe. not know the equitable remedy by bill of IntCTplwider. AA»!JrT^™.l?^*'^r'° "**■ """"y *•>• Bngliih Interpleader fH«i*?,itiT*"i."° ^^•' *• "• *■ '» '<"«•. and relief under It to admlnlrtered by Court, of law. 6 WllUam IV., N. a W Na ? ?flJS5"?f8S?'"i?S?*SV."f S"!?."-* lS»u'adopte?L?^rS, Z\zV^' ^^^}' * N. a Wale. L. R. 148. There 1. alM> aninter- fi^"wT?£ W.V**Mr°* *° "»•*«»« D^*» Court," viS. ^ ''•^.''•»*'— Th« Sngliah principle, of interpleader in eaoltr were early adopted: Richard* v. Baiter (1822^6 John Ch S? U»4), 2 Bd. Ch. 406; jSfkaw v. Cotter (1840), 8 Paige 338. Them SS^'"^*"*'S?»1?" ^'« eyer .IncJ; been*^«Ml.SS i«,i«; -CT-K ^- *?*• In "5J the Leglelatnre enacted a proTiaion, tatJSlSKr ' '**"'°'^' "^«»'t »•» «"**»" ca«» Obtain reUef by SecUon 122. A defendant agali..t whom an action 1. nendinr S^"«»^S1?"*' "^ '" ■»'~*"«' "^ °' PerK»naI^SSrty,*SS^?^? J^Jk!^?.^.'^'"".^!!"* "P°° affidavit that a perK>rn«^«S'"'*' »S:r"' *w°, ^^ »•*«»• "<» dlBcharge him ftom ^^ll^^^f^u f^ f? •»*• ««P<»»"»8 1" Court the amount of 2 th! rv,?L"**"^*1.^ !?• property or it. value to rach permn MBS??*! T?" ^i«****^ by the BngUsh statute of 1 4 2 Wm. IV. i;« Lit #^" " 'J"" amended in 1877. by dropping the right to SUaXIV^'^.^! "^ property, and by allowing lite" ?«S5^t«i**«* defendant In an action of ejectment: and i^n in fni^Jt ? °°\"*^°'*"« ? ""» "'"««'* code of civil procetore m follo^^ (see chapter 246. laws, 1894). "vwuro •• «««^***'''°*'*?L'^ defendant against whom an action to recover upon a contract, or an acOon of ejectment, or an action to Jii 880 THE LAW or nrmPLBADKB. rMOTcr a ebattol te pwdlac, may at uy Ua« btfor* angwOT, upon proof by afldarlt. Uiat a pcnon not a party to th* aeUoa. ■lakM a demand acaint him tot the sam* debt or pn^arty, without oollnsloa with him. apply to tha Coart upon notlea to that paraoB and tha advaraa party, tor an ordar to anbaUtnta that parMm In hla place, and to dlacharte him from UabUlty to either, on hla paylnc Into Cknirt the amount of the debt, or dellTerlnc the poaaeaalon of the property, or Ita ralue. to each peraon aa the Oonrt direeti; or upon It appearing that the defendant dla- putea. In whole or In part, the liability aa aaaerted agalnat him by different elalmanta, or that he haa aome Intereat In the aabjeet matter of the oontroreray which he dealrea to aaaert. hla application may be tor an order Joinlnc the other claimant or elalmanta aa eo-defendanta with htm In the action. The Court may. In Ita diaeretlon. make each order, upon each terma aa to eoata and paymenta Into Court of the amount of the debt, or part thereof, or dellrerlns of the poaaeaalon of the property or Ita value or part thereof, aa may be Just, and thereupon tha entire oontroTeny may be determined In the action. Interpleader will not lie In an action remoTed from a Juatieea' to a County Court: Rmndle t. Oordon (18M). 27 App. DlT. N. T. 461 ) Hew geal B B d. — By Act No, 29 of 1882. 46 Vict, tbii colony adopted wbat !■ in aubetance the Bngliah Judicature Act and Rulea of 188S, so far aa they apply to stakeholders. Rulea 472 to 479 of The Code of Civil Procedure In the*8uprMne Court of New Zealand, are in substance, the ruler, rel c. \% to inti^rpleader contained in the Bngliah Order LVII. of IShi. *?»*k «•»•">«»•— In thia SUte the Courta follow the equiteble prtndplea of Interpleader: Martin t. Maherry (1828). 1 ?*w»«'*;,S!!*,*^*-JJ?*Tf* <*"•>• * '"*• =«• ^- •«« •»■<> Otwey r. White (1871). 66 N. Car. 226. and Munda ▼. Cat$idey (1887). 98 if; J?*;^"^* "*• following section is contained in the Code of ClTll Procedure. Section 189. A defendant against whom an action is pending upon a contract, or for speciflc, real or personal property, upon proof by affidavit that a person not a party to the action makea a demand against him for the same debt or property, without collusion with him, may at any time before answer, apply to the Court, upon notice to that peraon and the adverse party, for an order to substitute that person In his place, and to discharge him from liability to either on his paying into Court the amount of the debt, or delivering the possession of the property or its value to such person as the Court shall direct The Court In Ita discretion may make auch an order. Morth Dakota has the following provision under which a defendant in an action may interplead. Code of Civil Procedure. 1896, section 6240, A defendant against whom an action Is pending upon a con< tract, or for specific, real or personal property, may at any time before answer, upon affidavit that a peraon not a party to tha action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, i^iply to the Court for an order t«? substitute such person in his place, and discharge him from NORTH-WUT TnUtlTORIES (CANADA). 881 ItoMllty to elUiw p^rty. oa bit depoalUBg in Coart th« aaoant of tli« debt, or dellTwIiic the property or lU tsIim to toeh IKr«»B M the Court may direct, and the Court nwy In Iti iimsn- tion make the Mquent execution creditor claiming priority over any previous Judgment, execution, process or proceeding; (d) The execution or attachment debtor claiming the beneflt of any exemptions from seizure allowed by law. 432, Where a claim is made to or in respect of any goods or chattels taken in execution under the process of the Court, it sh^l be in writing and upon the receipt of the claim the sheriff or his officer shall forthwith give notice thereof to the execution creditor, and the execution creditor shall within four days after receiving the notice give notice to the sheriff or his officer thrt he admits or disputes the claim. If the esecution creditor admits the title of the claimant and gives such notice he shall only be liable to such sheriff w officer for any fees and expenses Incurred prior to the receipt of the notice admitting the claim. Ai,J^ ^^I^ the execution creditor does not in due time as directed by the last preceding rule, admit or dispute the titie SL l«l^""'v? *^f *°°**" "" c»»a"el8, and the claimant does not withdraw his claim thereto by notice in writing to the sheriff or his officer, the sheriff may apply for an interpleader summons to be issued, and should the claimant vr-hdraw his claim by notice in writing to the sheriff or his .3 «r, or the- execnuon creditor in like manner serve an admlssit.:: of the title of the claimant prior to the return day of such summons, and at the same time give notice of such admission to the claimant, the Judge may in and for the purposes of the interpleader pro- ceedings, make all such orders as to costs feee. charges and expenses as may be Just and reasonable. 484, The applicant must satisfy the Court or Judge by •flMavlt or otherwise: (1) That the appUcant claims n' Interert 882 THE UW or INTERPLRAnCR. in the ■ubjmt-matter in dispute. oth«r than for chargea or noata; and (2) That the applicant doea not collude with any of the claimanU; and (3) That the applicant is wtlling to pay or transfer the subject matter into Court Or to dispose of it as the Court or Judge may direct 435. The applicant ahall not be disentitled to relief by reason only that the titles of the claimants have not a common origin but are adverse to and Independant of one another. 436. When the applicant is a defendant application for relief may oe made any time after service of the writ of summons. 437. The applicant may Uke out a summons calling on tho clnlmants to iippear and state the nature and particulars of tLoIr claims, and either to maintain or relinquish them. 438. ir the application is made by the defendant in nn action the Court or Judge may stay all further proceedings In the action. 439. If the claimants appear in pursuance of the summons the Court or a Judge may order either that any claimant be made a defendant In any action already commenced in respect to the subject matter in dispute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and in the latter case niny diredt which of the claimants is to be plaintiff and which defendant, as also the time and place for the trial of such Issue. 440. The Judge may if it seems desirable so to do, dispose of the merits of ttieir claims, and decide the same in a sum- mary manner and on such terms as may be Just. 441. When the question is a question of law, and the facta are not in dispute, the Judge may either decide the question without directing the trial of an issue, or order that a special case be stated for the opinion of the Court If a special case la stated, the provisions herein relating to spocial cases shall as far as applicable, apply thereto, 442. If a claimant having been duly served with a summons calling upon him to appear and maintain or relinquish his claim, doea not appear In pursuance of the summons, or having appeared neglecta or refuaes to comply with any order made after his appearance, the Court or Judge may make an order declaring him, and all persons claiming under him, for ever barred against the applicant, and persons claiming under him. but the order shall not affect the rights of the clalroanta at between themselvea. 443. Subject to the provisions of this order an appeal shall lie to the Court in banc, from the decision of the Court or « Judge In any interpleader proceeding, but subject to such appeal the decision of the Court or Judge shall be final and conclusive against the claimants and all persons claiming under them. 444. When goods and chattels have been seised in execution or under attachment, by a sheriff, and nny claimant allegea that he Is entitled under a bill of sale, or otherwise to the same by way of security for debt, the Judge r^ ^y order the sale of the whoir or a part thereof, and direct the application of the proceeds of the sale in such manner and upor. intoh terms aa may be Just 446. The rules of Court In respect to discovery and Inspec- tion shall, with the BM«aaary modtfioaUoas, apply in inter* NOVA SCOTIA. plmdrr i"-'«>*dlng». and tho Judge before whom the prooeedinn •r hau iKity B«aUy diapoae of the whole maltpr of the luier- pl iider prwe. dln>..' Including all coaU not otherwise provided Ufi. In cane t i^ ataerKt haa more than one writ, at the ault OP ,»»*«nv.» of different parUea. agalnat the aamo property, it ■hall not be uc.eaaary for the aherlff to mako w'parnto appll- f^Jn"'.."" ""'? """l.^ °^ •" ""''» «'*•*• »>»t he may make one application, and make all the partlwi. who are execution crodl- tora parties to the wUd application; and the Court or Judae before whom the application la made may make uuch order therein, aa if a separate application had beeu made upon and In respect of each writ. -K-.fi^' ***"''•"« t*"" »^hen demande,! pormU £ flni' ^...H*,° rr'""J P""""'"" «' the same until there shall Xr .?^.tl*n^*"*'"" "1 '■*■''*** "' ""» •*"»": hut In very such St anv t^m« h^-h'iM'"'*''"^'"/ ""» "*'" ««'«"""' "«• ^^^er officer at any time he shall sec lit. to resume the actual and nl»olute iV.!r.T'"!l '""' ""•^•'*'>^ °' *he said property, notwl hstandlnj such bond or security. Horses, cattle. ahVep. or any porlshable gowls. the subjec-t Of Interpleader, may at the request of olSer t?Ij;.rt« ;:''""m^ '»rnl-hing sufficient securlty^or by order of °"H^%Fr''""^^^^^^^^^^^ - --"It and an o^her matters as may be Just and reasonable ^ .k B . ■•••*••— Interpleader Is governed by Order t vr «# the Rules of the Supreme Court. lUOOrwhlch Is almSa verbatim ffilsh' Su'ler^rK"'""*.^"' »" Order I^iroTtSepr^nt the OnUrlo section. R. a O. (1897^ c bi « ks «/ a!^. *^ 2r"a.r. ra-s^^VJ- ----- --- 8l5ro„^7n,T'n^*''**ii*^- "">»*•" »»>• following provSSr In .?^ l?° "**"• "»^'' «ffl«lavlt of a defendant before answer J^mI "♦hI?" »«!«« contact, or for the recovery of persottal Jro- pwty. that a third party without collusion with htm. ha. or makes a claim to the subject of the action, and that he Is ready to pay OP dispose of the same as the Court may direct, the Court ^!i-^*. ?f '"!^*1 'ilT *•** •*'• keeping, or for the payment op deposit In Court of the subject of the action, or the delivery t&epeof to aueh person aa It may direct, and alao an order paquiPlnii such third party to appear In a reasonable time, and maintain or relinquish his claim against the defendant, and If ■uch thlp«t party baring been served with a copy of the order, by t&« aherilC, or auch other person as the Court may dlreot. 884 THE LAW OF INTERPLEADER. Ml to appear, the CJourt may declare him barred of all claim in respect to the subject of the action against the defendant therein; but if he appear he shall be allowed to make himself defendar ' in the action in lieu of the original defendant, who ' shall bts discharged from all liability to either of the other parties in respect to the subject of the action upon his compli- ance with the order of the Court for the payment, deposit or delivery thereof. Section 6017. An olBcer against whom an action is brought to recover personal property taken by him on execution, or for the proceeds of such property sold by him, may upon exhibiting to the Court the process under which he acted, with his affidavit that the property was taken or sold by him under such process, have the benefit of the provisions of the preceding section, against the party in whose favour the execution issued. Section 6018. In an action against an officer for the recovery of property taken under an execution or attachment, the Court may upon application of the defendant, or of the party in whose favour the execution or attachment issued, permit the latter to be substituted as the defendant in buch action, security for cosu having been given, or the Court mfiy order such substitution to be made on application of the officer. For remarks on the practice under this Code, see Sifford v. Beatty (1861), 12 Ohio St. 189; Leslie v. Eastman (1867), 17 Ohio St 168; Morgan v. Spongier (1870), 20 Ohio St 38; and as to Inter- pleader in Justices' Courts, Oeller v. Puchta (1886), 1 Ohio Circuit Cts. 30. Oklalioma.— The Statutes of Oklahoma, 1893, contain the following sections relating to interpleader:— Section 3916. Upon affidavit of a defendant before answer in any action upon contract, or for the recovery of personal pro- perty, that some third party without collusion with him, has or makes a claim to the subject of the actioov and that he is ready to pay or dispose of the same as the Court may direct, the Court may make an order for the safe keeping or for the payment or deposit in Court, or delivery of the subject of the action, to «uch persons as it may direct, and an order requiring such third party to appear in a reasonable time and maintain or relinquish his claim against the defendant If such third party, being served with a copy of the order by the sheriff or such other person as the Court may direct, the Court may declare him barred of all claim in respect to the subject of the action against the defendant ther^n. If such third party appear he shall be allowed to make himself defendant in the action in lieu of the original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action upon his compliance with the order of the Cottrt for the payment, deposit or delivery thereof. Section 3916. The provisions of the last section shall be applicable to an action brought against a sheriff or other officer tor the recovery of personal property taken by him under •xecution, or for the proceeds of such property so taken and sold by him, and the defendant in any such action shall be entitled to the benefit of those provisions against the party in whose favour the esacation issued, upon exhibiting to the Court the ONTARIO. 385 for S",?SoTy 5 p"?oSy° VS^JndV'r" " ?f^- «»<'-• Plevled by the plaintiff ibluch «.*.«„ *k^,,*° execution and re- executlon Issued, permit the latter »« S^^^w.^i'^^® '»^°" *»»« security for the <^te belnj Svln »"»««t«ted as defendant J«dgKr%?l'Jkl',it'^lth"^i;arti*1'?'^r ~"*» '"''^ "« «"»- on the S^So^lsionr Thi iLl?-1.*^'^ *!:^ o'°"°^«'* "^'^'y m Upper Canada In 1S43 7 vf.f *i^''^^''* °' ^^^l was adopted 18 found m some scattered fltlt^;nrl^*''*« ^^- '^^^ Present law rules of The RuIm of ^»^w ""^J sections and the following Court revls:d"a]id"co°^Sld%Sm?'!!^"™ °' *•»« ^"Pr^"'* "wr5";i'^«mron"1hSlM5./r "^«=""o"'' "wnt" and under The AteSing ibtS Anf^-nr***,' °' attachment (6) "Execution creditor "shall 1^^^!°- ^"i*^?"^* *° 10««" (c) "Sheriff" shall mLn a ih«rm •** attaching creditor." officer charged with t^^^Von ^f -^™°^r' *"«''^' °^ °ther High Court, or ot AC^^^n Z^ ?^^ "^^^ °^ process of the applies. *^°'"'*y ^o""^ 1° cases where Rule 1123 cant IS under llabluS to? iS Lb? ™nn "*'' '^^"^^ *»»« aPP»- for or m respect of which he Is nr'« J? ?\**^*"' o'" <:»»attels, or more persons (hereinafter caU^dV/oU.^ *°* ^.* ""*^ ^^ '^° claims thereto; (6) Where th?im^ni„*^*°""*^) "»''« a«*^erse • l« made to any money g^- oJ^^'if,?*, *' » ■»»«'-lff and claim taken or Intended to be Sen in-,"*^";! '"•*' *"■ tenements, execution, or to the piSeedJ Sr v«w*^*1"'"' .'""'*'" « ^^^^ ot other than the person SSt whom tL*^*'"~'' ^/ ^"^ »«"«»> 1104. The applicant rtan «««^ ♦k'' "0°"*** *"«"«^- affidavit or otherwSe- foi Th^t h J ?! *^°"'* °'" » J""*® bJ subject matter In dlSute ithJr th/„ ^i**"" °^ *°*«'"«"* 1° 'he charges or costs; (6) Thit he d<>«^^» '"n'T* °' » "«° or '«"■ claimants; and c) That he is ^iifnl ?^"*''* ''"•' '"^ «' the subject matter Into Conrt «- t^ i. °* *° ^^^r or transfer the a Judge may dlrwt ^ *° "'"P*^ °' " " *»»« Court or re«.i"U'tha?S?tSe/o?"the°cir ^'T""*^' *° ""«' "y origin but are advene to and IndeninH?*^,'"'^' °°* » ^o™""" 1106. Where the apnllouit f^*^!^ ?* °I °^^ another, relief may be made St aS «ml * ''*"'°''*?*' application for summons, and the CoiS S? a ^niJ^JL service of the writ of the action. * ''"''** ™ay stay all proceedings In cl.lm.ni.7o .Itt'fndXe^S* " T""" <*»«»» °- the *'• n^^ef^f *° -^^'^ or^JllnSfshT'r*" "' UvlMt^Trv^-ri J-c," Vffin^!li-S°S.m-S 81 THE LAW OF INTBRPLEADER. appear and maintain or relinquiali his claim, or, having appeared neglects or refuseB to comply with any order made thereafter, the Court or a Judge may make an order declaring him and all persons claiming under him to be forever barred as against the applicant and all persons claiming under him, but the order shall not affect the rights of the claimants as between them- selves. 1109. Where the claimants appear on the motion, the Court or a Judge may order that any claimant be made a defendant in any action already commenced ir. respect of the subject matter in dispute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and la the latter case may direct which of the claimants shall be plain- tiff and which defendant. . 1110. The Court or a Judge may with the consent of both claimants or on the request of any claimant, if having regard to the value of the subject matter in dispute, it seems desirable so to do, dispose of the merits of their claims, and subject to appeal, decide the same In a summary manner and on such terms as may seem just. 1111. Where the question is dne of law, and the facts are not in dispute, the Court or a Judge may decide the question without directing the trial of an issue, or order that a special case be stated for the opinion of the Court 1112. Where goods or chattels have been seised in execu- tion by a sheriff, and any claimant alleges that he is entitled under a bill of sale or otherwise to the goods or chattels by way of security for debt, the Court or a Judge may order a sale of the whole or a part thereof, and direct the application of the proceeds of the sale in such manner and upon such terms as may seem just 1113. Where a sheriff applies for relief by interpleader and any execution creditor declines to join in contesting the claim of the adverse claimant, the Court or Judge may direct that such creditor shall be excluded from any benefit which may be derived from the contestation of the claim. 1114. The Court or Judge who tries the issue may finally dispose of the Interpleader proceedings Including all costs not otherwise provided for. 1116. When a sheriff finds property in the possession of a debtor against whose property he has a writ or other process in his hands, and a claim is set up to such property by or on behalf of a third person who is out of possession, or is in joint possession with the debtor, the claim of such third person shall be made in writing, and upon receipt thereof the sheriff shall forthwith give notice thereof to the execution creditor according to Form 'No. 72, and the execution creditor shall within seven days thereafter, give notice to the sheriff according to Form No. 78, that he admits or disputes the claim. If the execution creditor admits the title of the claimant and gives notice as directed by this rule, he shall only be liable to such sheriff for fees and expenses incurred before the receipt of the notice admitting .the claim, and no action shall be brought against the sheriff in respect of the seizure of the property. 1116. Where the execution creditor does not in due time as directed by rule 1116 admit or dispute the title of the claimant ONTARIO. 387 to the property, and the claimant does not withdraw hi. ^i«i«. SaJ slim J^\°'*^'" " ^"^ ««*■• '«««' <='»"««' a°d expeLe» aa cauon on each writ or In each Slon Z h«*™ ''"^V^^"- "''^'{S'^^.hreThY '"^•'^ -V'^-^-t^^^^^ ?;edrtSfs?a%'tU°' the Hl«h^o.^r? J^r *" """*** '™'" ^^'^e™! Courts. Including the H fh Srt nna °°® °'' "*"'« ^"""^^ CouTts. or Includ inf the Slli' nSjd j;? rsLtncronh'° 1, ^•«*' *••« '^-t- o' be a first Hen or cLrLe ur^^ ti,« ,«^1 ***® *"*''*"« <=''^*°»- shall be found m the IM,^ to L *nnn«°Hr *"■ «^*'» ^'^I'^l* ""T (2) In addition' aLTVSioS? prSudlce' toThe '^-^./^r"""' STtaLnufh^'Jstra^nd'^i-/?^^^^^^^^^ ^^-teSTo h°^ taxation u^n Sh o? ^he dI^*i,S "2?^h«*V «'«rtlflcate of Sr^S^rr "'"•^ °^« !«ueTaif t.^.u?h' cJL"ts"VKrt'5r ProiS S%^rinrpe"X%he SaTi? t^^ •'"'^ *^« custody Of the sheriff who*s3 the JISi °'he CoiToV J„l^! ^o?\^rt*rrleTn^\^nra£u^?hr^^^^^^ Court or Judge delms tJSUnlhU- !!l!f^*K°' *?« Property as the Hen upon the proSr f^a^f;*"^/*^'''' ""*'■"' "''»» l"*^® » the Is^e beln^Sd a^fl?*?h °',*^* ""f ! *° **>* *^«°t o*' -••'"^ »-h Iss^e'rha^be^'S^alf^^^^ *'' "*'"' *° mteSfid^'p^r^^LTn; 2^ "au'^ 1° "J" '?V''« P-poses of an satisfaction or payment of aS Hen ^ ehJ^f^/^tf^^""* "»• and as to costs and all ottJr n.^*f» **' °' **"' applicant, reasonablfc """^ matters as may be Just an« I Pi! 388 THE LAW OF INTEftPLEADEB. 1128. Relief by interpleader may be granted In the County Courts. (1) Where the person seeking relief (hereinafter called the applicant) is under liability for any debt, money, Soods or chattels, for or in respect of which he is or expects to be sued by two or more persons (hereinafter called the claimants) making adverse claims thereto; and in such case (a) Where the applicant is being so sued in a County Court the application may be to the Judge of the County Court in which the action Is pending; and (6) Where the applicant is not being so sued and the debt, money, goods or chattels in question do not exceed in value' |200, the application may be to the Judge of the County Court of the county in which the applicant resides, or in which the money, goods and chattels are situate. (2) Where the applicant is a sheritt and claim is made to any money, goods or chattels taken, or intended to be taken in execution under a writ of execution, or to the proceeds or value thereof by any person other than the person against whom the writ was issued, and in such case the application m^y be made to the Judge of the County Court of the county in which such money, goods or chattels are so taken, or intended to be taken, notwithstanding that the writ ntay have been issued from another County Court or that writs may have been issued from two or more County Courts. 1124. All subsequent proceedings shall be had and taken in the County where the application is maSe; but the Judge to whom the application is made may order that the subsequent proceedings be had and taken in any other (3ounty, if that course seems ]ust and more convenient. 1125. Where the amount claimed under or by virtue of writs of execution, in the sheriff's hands, issued out of one or more Courts, does not exceed the sum of $400, exclusive of interest and sheriff's costs, or when the goods seized are not, in the opinion of the Judge, or other person making the order of the value of more than |400, the order directing an issue to be tried may direct that the issue shall be drawn up and tried in the County Court of the county in which the issue would, under the provisions of Rule 1124, be tried, and in such case the Issue shall be drawn up, filed and tried in the County Court, and all subsequent proceedings therein up to and inclusive of Judgment and execution shall be had and taken in the County Court, which shall, where any of the writs of execution were Issued out of the High Court, have Jurisdiction in the premises as fully as though the same had issued out of the County Court. (2) Where an application is made for an order under this rule upon the ground that the goods seized are not of the value of more than 9400, a list of the goods and of the value placed upon them shall be set out in the aflldavT a upon which the application is based. 1126. Where the amouut of the execution or the value of the goods does not exceed 9100, the issue may be directed to be tried in a Division Court and thereafter all proceedings shall be carried on in such Court. 1127. The proceedings for and relating to the order for costs and for obtaining money out of Court when the same has been paid into Court by the sheriff and for such other purposes as may be necessary, may, in the cases provided for in the rules 1125 and 1126, be taken either in the original cause or before the ONTARIO. 889 i?^*'..°M*'^ County Court or Division Court. &s the esse nuT I^' JA° *^*k *••*. "■?*• •""* •>« •''»» »»»^* Po^«' »nd authority 1128. In respect of all such proceedings had In the County Court or Division Court, the costs and disbursements shall be taxed upon the County Court or Division Court scale. «. (e) " Action." as defined by section 2 of The Judicature Act, 18»6, shall include proceedings for relief by Interpleader under Rules 1102 to 1128. 46. (1) The Judge of every County Court other than the County Court of York, shall In Interpleader proceedings where the goods in respect of which Interpleader Is sought are situate in his county, have concurrent Jurisdiction with, and the same power and authority, as the Master In Chambers at Twonto. 49. (1) Every Local Master who does not practise as a barrister or solicitor, and who has not taken out certificates to practise, shall, in addition to his other powers as local Master tT®^ .V '^fP'®**'®'" proceedings, when the goods In respect of wnich the Interpleader Is sought are situated in his county. coricurreDt Jurisdiction with and the same power and authority as, the Master in Chambers, In all proceedings now taken In Chamber.! at Toronto. n.nH«*«ii^? Service out of Ontario of a petition or notice of OT a Judge " P'"'^««***°«» "»y ^ allowed by the Court .- J1J{ T^^M, "f Issue is directed to be tried it shall as soon ft u Vi ' J^^l*"* V^^ ***® P''°P«'" °"cer of the county In which aJUr^T^ *° 5f *'*.*^' *"'* thereafter, unless otherwise ordered, the proceedings in the issue shall be carried on in the •uSTc^^*'' " ^^^ proceedings In an action commenced in The following are Statutory Proviaiotu: If th« ^«2' ?° asBignment of a debt or other chose in action If the debtor, trustee or other person, liable in respect of X m«„*t°r/5?" i^*?'°° "•'*» ^"^^ ^'^ notice thatlS^iSiS! Jih/o^^S' *7 °*?.* oPP«'»'»S or confilcting claims to such oin .,n «^k" *° *''^°°' ^^ «''*" *»« entitled, if he thinks fit. to r68 (6) "*"'* Judicature Act, R. S. O. 1897, c. 61. bond^ M^ h«~/5o*?'"'" not '"thout written Instructions and a wWch Tu ,n tt ^^ mentioned, be obliged to seize property Tnd noi li ti**® possession of a third party claiming the same. ?h* «^A *"» Powesslon of the debtor against whose property tf„n« to Z f^r ^Tf^" v''*" *•■"«'• (2) The written instruc- lh^fj2 ,^ '*®"^e'-ed to the sheriff shall specify the goods and «»- ? *K """'* f "'^y " *° ""»»»'« t**® sheriff to idSy the ^^y^A^% F^" *°** "''***«•" Intended. (3) The bond Is to 5Sffl.w'*«f^".'""°°*i^ *° *•>• •*»"*« "<» I''" •»»'Kns. with two «?,- ®°,- *1"""^' ^*'° "« ^ in»tify In double the supposed IfflS!vU h*?**,?"^!?.^' ""«»> "PPOWd value to be stated In «? affidavit by the creditor or his solicitor or agent, and attached 890 THE LAW OF INTStPLEADER. to the bond. (4) Tbe bond is to be assignable to the claimant, and is to be conditioned that the partiea executing tbe eame will be liable for the coeti and ezpeuM which the aheriff or claimant may be put to bjr the seimre or aubaequent dealings with the property, including the interpleader aoit (if any), and which he does not recover from other persons who ought to pay the same. (5) In case the sheriff is not satisfied with the twnd offered the matter in difference is to be determined and disposed of by a Judge. (6) Damages claimable shall be the same as before the passing of this Act (7) Nothing In this section shall be construed to limit the rigbt of the sheriff to apply for relief by interpleader under the present law and the practice of the Courts. (The Execution Act, R. S. O. 1897, c 77, s. 22.) (3) The two preceding sub-sections (regulating the division of moneys made on execution) shall not apply to any moneys received by a sheriff as the proceeds of a sale of property by him under an interpleader order; but upon the determination of the interpleader issue in favor of the creditors, the moneys whether in the sheriff's hands or in Court pending the trial of the issue, shall be distributed by the sheriff among the creditors contesting tiie adverse claim. (4) Where proceedings are taken by tbe sheriff or other officer for relief under any provisions relating to Interpleader, those creditors only who are parties thereto and who agree to contribute pro rata (in proportion to the amount at their executions or certificates) to tbe expense of contesting any adverse claim, shall be entitled to share in any benefit which may be derived from the contestation of such claim so far as may be necessary to satisfy their executions or certificates. Tbe Court or Judge may direct that one creditor shall have the carriage of tbe interpleader proceedings on behalf of all creditors interested, and tbe costs thereof, as between solicitor and client, shall be a first charge upou the moneys or goods which may be found by the proceedings to be applicable upon the executions or certificates. (6) " Adverse claim " In the next preceding sub-section shall mean any claim to contest which an interpleader issue is directed; and upon any inter- pleader application the Court or Judge shall have a discretion to allow to other creditors who desire to take part in the contest, a reasonable time in which to place their executions in the sheriff's hands, upon such terms as to costs and otherwise as may be Just and reasonable. (Tbe Creditor's Rollef Act, R. S. O. 1897, c. 78, s. 4 (3), (4), (6).) A certificate under this Act shall in Interpleader proceed- ings be deemed to be an execution. (The Creditor's Relief Act, R. S. O. 1897, 0. 78, S. 9 (3).) The County Courts shall have Jurisdiction in Interpleader matters, as provided by the rules respecting interpleader. (The County Courto Act, R. S. O. 1897, c. 55, s. 23 (6).) An appeal shall also lie to a Divisional Court of tbe High Court of Justice from every decision or order made by a Judge of a County Court sitting in Chambers under tbe provisions of tbe law relating to intOTpleader proceedings, provided always that the decision or order is in its nature final and not merely interlocutory. (The County Courts Act, R. 8. O. 1897, c. 65, s. 62 (1).) ■'^m OKTARIO. 891 The Mttlement of conflieUns elalnw anA appIleaUona In TMpect of a number of special matters are provided for In several <3aiiadlan statutes as follows: ConflieUns applications for patenu (Revised Statutes of Canada, 1886. c. 61. s. 19). Con- mtf'.uK appUcaUons for copyright (R. P. C. (1886). c. 62. s. 19). ConriJctlng claims for registry of a ship (R. S. C. (1886). c. 72. w. 12, 13). Claims by two or more persons to a week com- prising cargo, stores, tackle, etc (R. & C. (1886), c. 81. s. 38). C^^ms to compensation for land taken by railwayt (51 Vict Canada, c. 29. ss. 167. 168). Claims to compensation for land taken by the Crown (62 Vict Canada, c. 18, ss. 26-28). Claims to trade marks (63 Vict Canada, c. 14, s. 1). IlTTXIIPLEAOEB IN THE ORTABIO DIVISION COCBTS. (1) Introductory. *«*^*-^i°f"*°°' Ont^'o. 01 August 27th. 1841. was passed the Act 4 * 6 Vict c. 63. which made provision for the recovery of small debts. In what was then known as Upper Canada. This enactment is now known as "The Division (Courts Act" '•i I860 a section was introduced (s. 102, 13 A 14 Vict c. 63), which gave bailiffs relief by interpleader when claims were made to goods Uken in execuUon by persons other than the oebtor. This was almost a transcript of a similar provision In the English County Court Act passed in 1846 (9 6 10 Vict c 96, s. 118). T« .''?* Pf«»»t special provisions governing Interpleader In the 7?7i5!°° S°^^ are secUons 154 (2). and 277 of Revised Stotutes !il -JJ: *°*P**'" ^' and Division Court Rules Numbers 32 to 37 77, 154 (6). and 290 (6). (c). Interpleader in this Court Is to a cocBlderable extent governed by the cases on sherirs inter- plender. There are also several omnibus clauses which make the Rules of Law. and the principles of practice. In the High Court, apply to matters within the Jurisdiction of the Division Courts. Section 312 of the Division Courts Act enacts that In any case not expressly provided for by that Act or by the Rules thereunder, the County Judges may in their discretion, adopt and apply the general principles of practice in the High Court to actions and proce. lings In the Division Court wHi.Tr!l°° J^."!!?!?***" V""* ^•*'' "»"■"* *° a" cause" «' action within the Jurisdiction of the Division Courts, such Courts shall have power to grant and shall grant such relief, redress, or remedy, or combination of remedies, in as full and ample a manner, as might and ought to be done In the like case by the High Court [Speers v. Daggers (1885). 1 C. & E. 503.) Section 59 of the Ontario Judicature Act provides, that the rules of law enacted by that Act, are to be In force and to receive effect in all Courts whatsoever in Ontario, so far as the matters to which such rules relate shall be respectively cognizable by such Courts. «»«>vLivoi, %ect^\f (^^^1^}^*°^ '*r* ^T^ ^^ **»« Judicature Act, ?^«™?JJ ^ J' '■•"»»' » S) TiA.^,,?';.''".!.'"?"' '■ *«">««« ("!»). " U^ mtttr .hk.^. .™.." J"""" '» '° l>«™«on of tl» lubject ™n; u.'cTb'y«T'- " '«••"•■•«• ''•-™!si- Daiiin to interplead. The claim most be Bomethinff tnn» ♦!.-» • mere panlng one. ThnB, when m»ne?,?2?^fn Sf CS *of*2 clerk and a third party noUfled him not to w It ovibS toot S^ii^^^w '^^ *° ~'°P«» payment, UwLhelf that ^J notice aot to pay gave the third paity no right, and the clerk KS**'/fiJr?J^7.''^/5f^'°«^ *° P*y attention to It /Sj woiiflM 7. fteW (1877), 26 Grant, 139.) The claim need not Ha m Writing nor in any parUcular form. ^ afte^n ilS^^^'?" "?"*"»? tJ»e application 1b either before or a? The^?o^^° ^~"«" ■«»"«* «>« Officer, %^tlon 277 ^g' bLSL^hi.*^",/"'* '"r " lnt*pleader for the pro! ceeag i)ecau8e this would compel the claimant to try his rl«ht (4) The Application and Sumnmna. rrJI^t v°"* '^P *"*'■ "»« "e*™"* and claim, and after the Z^!^, ^f? "5"*® ■ •**»""'* '^t** ">» clerk to cover <^t8 te SiSt'^i^m'^whiyM,'**"" '°'' * •»"°'°" to the cTerHf the Court from which the proceH iMued or to the clerk of the ^i- 894 THE LAW or INTXRPLXADIR. Court held for tta« dlTision In which the Mlrare wu made, at the option of the balllfl, calling the creditor and the claimant, to such Court [Section 277 (1), and Rule S6 (d), (e).] l^e applU cation eeta out the execution, the ■eUnre, the adverae claim, the Talue of the property, and the bailiff's request that an Interpleader summons issue to the plaintiff and the claimant (See Division Court, Form 4.) If the bailiff hJu more then one execution or attachment, at the suit or Instance of different persons against the same property, it is not necessary for him to make a separate appli- cation on each execution or attachment, but he may use the names of such execution or attaching creditors collectively in such application. (Section 277 (4).) The clerk next Issues a summons calling the execution creditor and the adverse claimant before the Court out of which the process Issued, or before the Court holden for the Division in which the selsure under the process was made. [Section 277 (1).] The clerk should not issue an Interpleader summons until the bailiff has applied for It Where a clerk did BO, and both parties appeared, and submitted to the jurisdiction, It WAS iietd tuat the proceedings were not void: Regina v. Dotu (1866), 13 U. C. Q. B. 400. The summons notifies the claimant to appear at the Court, tou'ihiiAg the claim made by him to the property in question, which has been taken in execution, and that if he fail to estab- lisk his claim the property will be sold, or the money paid, according to the exigency of the process. He Is also notified that be is required five days after service of the summons to deliver or leave with the clerk, a partfcular of the goods claimed, and the grounds of his claim. (Form 5 to Rules.) The summons notifies the execution creditor to appear and maintain his right to have the goods sold to satisfy his claim. Both parties are notified in the summons that every claim will be adjudicated upon at the sittings. An interpleader summons is served on the claimant and creditor, or upon any solicitor or agent who acts for the claimant or creditor, in such time and manner, as is directed for service of an ordinary summons to appear. (Rules 32 and 35 (d).) The summons may issue with the names of the execution or attaching creditors as plaintiffs [section 277 (4)], but on the return the claimant is made plaintiff (Rule 37). When the application is made in respect of goods taken In attachment, the matter is subject to the provisions of the Act respecting absiunding debt .s. Revised Statutes, chapter 79, (Section 277 (1).) (6) Particulars to be given Ity Claimant. The claimant must within five days after the day of service of the summons upon him, deliver to the bailiff, or leave at the ofllce of the clerk of the Court, a particular of any goods or chattels, property or security, alleged to be his, and the ground of his claim, set forth In ordinary and concise language. (Rule 33 and Form 6.) The claimant should state that he claims the goods and chattels seised, specifying them, and the grounds of claim, in ordinary language; the particulars on which the claim is ONTARIO. 896 grounded, m how acquired, from whom, when, and the ron- •IderaUon paid or to be paid, and that he will maintain and prove S.TJ"?m*"k " "J^**""" 'or th..el.ure baa l^ J ^! meneed. this should be aUted, and also how the action stands m.1-- ♦t'* * landlord claims for rent he must show in his partl- Fom^.) ' *" * • *""• °' *••• »'°"*°«- ^"'« 33 «"»« It has been held that great strictness should not be exacted from a claimant in respect of particulars. TTie test aoMul hew sulBciint: '^"owing cases the particulars have been ♦« ♦i^^Jf." *°**?* ***''■• ''**"°K *»»»» they had been assigned «HM «'!*""* by deed, giving the date and par«^. aUhffi (0«ie» V /Krf,*n«M*^,'*r^ ^*» «oi 1*^'?' '=°°'«y«» «"' "" estate aSS Ifleite t^ the th-^^u **»°'"tely. to be administered for the benefit of aU ^^p^:i!^^';i^.S!.^rS^'^ !s?r;'airnd^^e of the other part, the Judgment debtor gr«»ted £^"'aSSm^ fniT all «,Vph il5 " ^°'"'^' *"'«^*'"y *•"* premises," and claim- mg all such goods as aforesaid mentioned which had h««n N. a^'awT' '''■"• ^^'"' ^- «*«w»«"» assf) 20 1. J a b nntir'tJ°"°y*.°* particulars have been held insufllclenf A pro^rt5'^and"^*„rfh*' "*''''* ^^^ "'^ "« «"»<« werrmy owi ^iJm^io ? T ^*J*o®,i""°P*rty of the debtor" (Ex. p. Tamer tllJ^, ^ i **• ®- '"•> Particulars describing Uie property m the goods and money seized by virtue of the wairant and t^ Sntre'at^Jre Se'S? '^-^^ ^f™ the priSrtT^f^hl'cfalmlSf, clent ftithoUh °' "®*'"'"® *° *»*•» possession, held Insuffl- ?»^^;' ajthough upon appeal the Court was equally divided {Richardson y. Wright (1876), L. R. 10 Ex. 367). from ttrhinfff °1.*'°""'*. *''*"°" "*&"»»««» from the creditor, or h^m,«t L 11 • '°'l.°^*° '•®«P««* °' the seizure of the property, J^oTt hi PU.t^^r'*'^'*" °' ^'« <=^'"°' t° the goods, state the ^?m- -?\*^'.f' "' '°'" «l*"a8es and the grounds upon which he claims such damages. (Rule 35 (o). Form 7.) • (6) Particulars to be Delivered by Creditor. out ^%l «^^«*°'" '^l*'"" damages against a bailiff arising t^Lrl th ""'^tlon of any process, he must five clear dayi Sllfver to th.*.^i.T° ^^^"^ ^^ interpleader Is to be trf^ t^atLJ^ ^*P a notice of such claim, stating the amount •nd the grounds for the claim. (Rule 36 (6), Foiii 8.) #1 396 THE LAW or INTBRPLEADER. (7) Suhfeet Matter pendl$tg Interpleader. When the advene claim Is made the bailiff has either got the good! he eeiied, or their proeeedi If he has aold them. It he has the money he shoald pay It into Court, where it U retained by the clerk until the claim haa been adjudicated upon (Rule 88), _. . ^ It the claimant deaire poaaesaion ot the property aeliea, the bailiff must re-deliver it to him, upon his depositing with the bailiff the value of the property, or the amount ot the execution, whichever is least If there be any disagreement aa to the value of the property, the matter will be decided by the clerk or the Judge. The deposit is then paid by the bailiff into Court, to abide the decision of the Judge upon the claim. (Rule 86 (»).) If the goods be ot a perishable nature, or if they are cattle and require food and keep, or it tor any other Just and sufllcient cause it may appear proper to sell at once, the Judge may upon the application of any party make such order as he may think reasonable for the sale by the bailiff or by any person named !n the order (Rule 86). , ■ ^ .* If the claimant wish to prevent a sale he may deposit with the bailiff the value of the property, to be fixed bv appraisement in caae of dispute; or the sum which the bailiff shall be allowed to charge as costs for keeping possession until a decision can be obUlned. In default ot the claimant so doing the bailiff sells the goods, aa if no such claim had been made, and pays into Court the proceeds to abide the final decision ot the matter. (Rule 87, and see Cromer v. MatthewB (1881), 7 Q. B. D. 486). If th'e claimant do not prevent a sale by paying in the value ot the goods and the bailiff sells, the claimant succeed- ing cannot recover the value ot the goods, but only the proceeds ot sale: Holmee v. Dunatall (1868), 2 South Australia, 28. The bailiff muat not retire from possession, because an Inter- pleader summons has been issued (J?« p. Summers (1864), 18 Jur. 622). It was formerly held, that it the bailiff sold after a claim had been made, and before the claim had been adjudicated upon, he could not give the purchaser a good title, and if the claimant succeeded, he coul4 replevy his goods from the baiurs pur- chaser (Retd V. Macdmald (1876), 26 U. C. C. P. 147). (8) Domagea claimed man to paid into Court. Where a claim tor damages is made against a bailiff and creditor, or against either ot them, they, or either of them, may pay into Court money in full satisfaction ot such claim for damages, and such payment into Court shall be made in the same manner and have the same effect, as if the proceed- ing were an action in which the claimant was plaintiff and the bailiff and creditor defendants. (Rule 86 (c).) (9) Proeeedtng to Trial. The Interpleader matter is tried by the Judge In a summary way, without formal pleadings or Joinder ot issue, on the day named in the summons. The Judge may in his discretion change the place ot trial from the Court where the process Issued, to the Court of the divlslcm in which the selxure took place, or vice verta. (Rule 86 (e).) ONTARIO. 897 - . '" ^1 InterplMder Imum, where the money claimed, or the «M'„r'J^r„^^ Claimed, or the proceed, thereof ex^J 1100: or when the damages claimed by either party a^net the other, or againrt the bailiff, exceeds the sum of fBoT^rclerk iJL'"«JI^'!^ V5 °*-^^ '"»*°*" °' »>»• Co«rt 1. dSpoSd " Si«^-^, «1 ^.l^'f-.'*?!! "P^**^ •■•»«"» otherwise ordei. ^^*^°°" **1' "* <*)• 1«1 (2). Rule 166 (6), «,-, -!?*r '■^7 *° '° interpleader issue in a Division Court may require a Jury to be summoned to try the Issue In such ^^^ST.'^TV: •*•";■ "^^ ^« "«"^»~ of ;Se Bumi^n; on him give to the clerk, or leave at his office, notice in wriUna requiring a Jury and shall at the »une time pay to "hrXk i«^/n ■«"?»<"'«»,f»«>r<"n« to the provisions of the Act (swUoS 1«1 (1). This secUon does not give the bailiff a right to a Jury }».5f"JJl*f "««•»*"•<* against him, although he may possibly have that right under section 160. which provides thatolther pp.rty may require a Jury in all cases when the amount sought to be recovered exceeds $30. «>"u»m ^i.-*!^!-*""®.*?* ?''°*'^ Claimed, or the value of the goods and whi^^^K °';*°"**'' °^*^« proceeds thereof, exc^s |h5o- or Tr !^i*„^-t ?r'?*?r.-""'*'°*^.''y **'^" party agalm.t the other tt.!f**°" ***• •*^""' "**«*• "»e "u™ o' »60, the Judge must. S! Hnt-'ir"*?} °°* .*° »»»»•• »"» been "isned afd'Syed: l5-«i22r'***v'' •''<>•'"'« »»> wriUng. and leave the same with the clerk of the Court. secUons 122. 164 (2). 161 (2). Thta Drovi- S^har^TSlSS V^'V ^'^'^ 10. .!'lO).iiforJtta?drte It bad been held, that it was not necessary to take down the evidence in writing, upon the trial of an interplwidw ?ssu^ (Bon* of Montreal v. Stattm (1881). 1 C. L. T. 66 ) attJhJ!?*wM?f'i«*"»K ''****' property o.- security, are seised or SiiSi «'ir?i^'' *° "1? ^ ^ *•»* e>»«°>">t. the case pro- f^K^f . }^* wtecutlon . lug creditor were the plaintiff. 2Jf!h?!- i55.f'^?v"*.'il*"'.*^« P^jlntlff. and the execution or lilz^^fvT****'^ *^* defendant Tlule 32 (o)]. It should be noticed that seoUon 277 (4) provides that the summons mS Issue m the na&>e of the creditor as plalnUff The Judge adjudicates upon the claim and makes such order between the parties as to him seems fit [Section 277 (3)1 Tt Is aSd'a"ciLl™.tr ?„• /".!*• *° "J^ '^t^-" »» exe^uuon creditor and a claimant, that the goods are included in a settlement leaving undecided whether the deed is valid or nSt It " hiii 2^;«.V**S~K°n?i*u* *~*»*'«' ^^^"^ '"" •«""» t»»e claim wid protect the bailiff, he must decide one way or the other. If he ♦« J^^i "i?. * "*»<»"»'» ''"I be granted by a Superior Court nimf^sTM ^w .~"iP'lJ'„"'* a p. Waldron (1870), 9 N. S. Wales S, C. R. 829.) Judi!! m!,"'?^!"' 'k-^^ '^•"^•'" Wurticulars as required, the Judge may, ti^n such terms as he shall direct allow hii« ♦« Jo* ir ."\? "iS* <*"'• ">• " wouirsim StTthe Srt? culars delivered are not sufficient, the Judge mav rifusT to hear evidence in support of the claim and 5vefudJS^#„^ Q. B. 818; Rlchordnn v. WHgkt (1876), L. R. 10 Bx. 867): liii i 11 898 THE LAW OF IMTERPLEADER. Where a Judge retused to adjudicate upon the claim filed on • tbe ground tbat the particulars did not dlatlngulih the portion of the goods seised, to which the claimant alleged he was entiUed, it was held that he. should have determined to What part the claimant was entitled. (Queen y. Btapvlton (1851). IS Jur. 1177; 21 L. J. Q. B. 8.) The Judge's decision with respect to the sufficiency of parti- culars is not conclusive lEn parte McFee CISSS), 9 Ex. 261]. A Superior Ck>urt will Intenrene, when the Judge Improperly holds the particulars insufficient (Wkiiehead v. Procter (1866), 3 M. & N. 632; Churchwarden ▼. Coleman (1866). L. R. 2 Q. B. 18), and will remit the matter to the Division Court for re-hearing. The Judge of a Division Court may, notwithstanding section 71. entertain an interpleader application, to try the question of property in goods, even though the enquiry may involve the title to land. The Judge himself must decide such application without the aid of a Jury. (Muneie v. McKinlev (1864), 16 U. C. C. P. 60.) On an Interpleader in the Division Court, the Jurisdiction of the Judge is not confined to the question of legal property. The words of the statute " to adjudicate upon the claim and make such order between the partieA in respect thereof as to him seems fit," are large enoui^ to embrace equitable claims, and convenience Is strongly in favour of the Jurisdiction. iMeInto»h V. Mcintosh (1871), 18 Orant, 68.) The Judge in adjudicating between the execution creditor and the adverse claimanl, also adjudicates between these parties or either of them, and the officer or bailifr, in respect of any claim to damage, arising or capable of arising out of the execu- tion of tlfe process, and may make such order in respect thereof as to him shall se«n fit (section 277 (3); thus, a claimant may be awarded damag.es for the trespasses committed in selling his goods. In addition to his claim to the goods themselves. iPj^J'* ^- *«»■»■<«>»» (1870), L. R. 6 Hx. 16; Mercer v, Stanbutv (1866), 25 L. J. Ex. 816; Tinkler v. Etlder (1849), 4 Hx. 187.) The Division Court Judge has power to adjudicate upon, and to award damages, even though the amount of damages claimed, found, or awarded, should be beyond the Jurisdiction of 'j?-I?"*°° ^"'*' "««Won 277 (6). The Court has power to adjudicate upon all claims of whatever amount, arising in the manner described in this section. (Smith v. Bentkin (1893), 94 L. T. Journal, 286]. *««Hi? claimant should seek all the relief he thinks himself ?hi i!iil°*v'^° i***® Division Court interpleader, whether to Harrison (1870), L. R. 6 Ex. 15.) *« Jl-'iM*''** *?* execuUon creditor does not direct the bailiff S-"^H««*^i?t ««^" *° «»« claimant, but appears and contests erLiinr Af !..-°K m-'T* °l » ~"«cation by the execution r? ft B 167 )•***""■ '^•tenMon. (Tappin v. Buckerfleld (1883), the SH^'*!Sr«r.'ir*.,fi*l°'* l? "^ interpleader proeeedln• ■»"»« riKht ot defence and countercWm,. as would exist, had an action within the Jurisdic- tion of the Division Court been brought to recover such ■;l ONTABIa 3»» DlTWo. Court Rule, my wt h... b«,. complSawi'kcnS. S, (10.) Co«(«. T^» T !. ^" °' *° Interpleader. (Rule 36 (f) ) to h^L ^.♦"'V^*™"' '**'" "»• <=°"t8 o' "»e bailiff are allowed claimed"* M^S^' «n^*""**' ?' *^* ^*'"« °' *»^« ~»>Ject matter .-i^ J **•**?■ 1100. or where the damages ciaimad bv nr e^rS^t**^ **"*" »"■'" ■«»*'»' "le otherTTSilnrt^iSiUff * ?5^SL"™'. ** • »*^'*«" o' ~UcItor. (Riie 288.) «r^.^*^ " *T* ''" '*««**«1 ««»»»«t the claimaxii: who was ordered to pay the coata of. tha Interpleader Dro«eedlnm Thf hjUUir paid the amount of the levy i"toCourt.^Jffi {Je F r.a-qVa'l^thSS^ff ^,'^,,^0? rnlLnT-aron^S'S^t £^*^TlS!5?15rg°Wr ^''^ interpleader ^r^^S"^! brourtl*?™?^/^."^.^ *? » DlTlalon Court Interpleader has brought an action In the High Court, or In a local orlSerior Si^ ♦-I ! Interpleader summons, and that the property has t^n.^ifri^r^."",?"' °' "P°° attachment, order the cufmaS o?«f/.?* **•*■ °' ''' proceedings In the action after the taroe of the summons out of the Division Court (secUon 277 (2)! The 4, m m 1- 400 THE LAW OF UTTERPLVADEB. claimant may be liable for the carta of the action from the Ume the clerk Isaoea the summons, althon^ he may not hare notice of the interpleader proceedings, nnUI the summons is serred upon him. It is to be remarked that tSe costs of such an action, incurred before the issue of the summons, are not pro- Tided for. If the claimant succeeds in the interpleader pro- ceedings in the Division Court, It would seem proper, that he might then move in the action for such prior costs; and if he falls the opposite party nugnt appiy in the same way for costs against him. The fees payable to the clerk for his own and the baillfl's costs are regulated by the value of the goods. (See Tariff items.) (11) ifew Trialt. An Intwpleader order is fine! and conclusive between the parties, and as betwwen them and the officer or bailiff, except, that upon the application of either the attaching or execution creditor, or the claimant, or the oacer or bailiff, withiii fourteen days after the trial, the Judge may grant a new trial, upon good grounds shown, as in other cases under the Act, upon such terms as he thinks reasonable and may in the meantime sUy proceedings. (Section 277 (9).) This provision was enacted in 1869 (32 Vict c. 23). Before that date, the decision of the Judge was final, and there was no pcwer to grant a now trial. {Regina v. Doty (1866), 13 U. C. Q. B 400; Keane v. Steihnan (1861), 10 U. C. G. P. 436.) The Implication for a new trial is too late, unless it is made within the first fourteen days after the trial. (Re Foley v. Moran (1886), 11 Ont Pr. 816; Bland v. Riwn (1890), 19 Ont 407. The evidence, if taken down by the Judge and filed with the clerk, in the event of an ^plication for a new trial, is forwarded to the Judge by the clerk, for the purposes of such application (sections 121, 161 (2), Rule 172). The right to v>peal Is not lost because the Judge omits in an appealable case to take down the evidence at the trial in writing. (Sullivan v. Francit (1890), 18 Ont App. 121. It was also remarked by Osier, J., in this case, p. 122, that it is by no means clear that section 121 is extended to interpleader. (12) Appeal*. An appeal lies to a Divisional CkMirt of the High Court of Justice from the decision of a Division Ciourt Judge upon an application for a new trial in interpleader, where the money claimed, or the value of the goods and chattels claimed, or of the proceeds thereof, exceeds $100, or when the damages claimed by or awarded to either party, against the other, or against the bailiff exceed^ |60. (Section 164 (2).) Where the landlord appears upon the hearing of an inter- pleader summons, he, as well as the execution creditor and the claimant, has a right of appeal. (Wilcoaion v. Bearby (1860), 29 L. J. Ex. 164.) The right of appeal from the Division Court in interpleader, was first given In 1884 (47 Vict c. 10, s. 9), before that there was no appeal. (Re Turner v. The Imperial Bank (1881), 9 Ont Pr. 19.) There is to i«peal, not even by leave of the Judge, where ONTARIO. 401 "k**^V *?*. °?°®'^ Claimed, nor the value of the cooda and irj!,""i22!' J/^/f* <"''»>• " ^ J- Bi 142)T Md Where a SSi£S Si'fJ*l,*"*° ^Y'*- " ">• appraised rilue of thl^jSta^d afterward, appealed, allesing that the good, were V^r"n Jt]^l^A^ ****,' ***! •P»«*^ ^" dtemlwed, on the g^und that (1887h 256. See alM> Lumb v. Teal (lg89), 22 Q. B. D. 676 ) ooBtM^ thf^J^».r?"i.*Ir*° '"' "»• execution creditor with nSL^-1 '^?^?*?' **^°« .ucceeded on appeal In getting ?i.?hZ,^„*'**"'!?**1' *-* ^^ *»«'"* «'«'* t»»e whole Judgment. In- riv«l2£i"^*/J?^ °S, J ^''*<'*' "»»*«»d to coat., WM theVeby reveraed. (Gain! y. collint (1867), L. R. 2 C. P. 381.) hi. !52.- " »PP«a}.t»»« toalllff ha. no right to appea" to Protect /i.«^TL "** "°*'® °' '«"«' by Interpleader 1. In dlimuta. iKtlpatriekx. Oilliam (1890). 16 Vlct Law rT73.) action 82°W"f1l*^ !!!^!!* *? ' ?*^*"°° ^"'t *■ »°t within ♦h^TH?.? /? t:* ^S^' *°,? "° *■ °°* removable by cerltoroH Into OT^. ^***' ^<*"^ (««»«» V. Tr«Kom« (1862), 8 U. C. UJ O. S 277; Ex p. 8umm«r$ (1864), ' Jur. 622.) lnteJtentKf"?h5 t*^'' '? ^"'^ "^"^ °^ « ^"^o-t tl»e SLfrfhll- Vfii*^ «■{"?* ^'e™ "»« commencement of tiie ^i !^*!L".^^ •** *^*^ -^ *•>• clw*. to any caw, an agree- ment In writing not to appeal, .Igned by both partlwor toei? joUcltoni or agent., and the Judge .hall note In hteminutS whethOT such agreement wa. m filed or not, and the mlnutei 1M(2) ) '*°®'"*'^® evidence upon that point. (Section. 122, On an iuue between a chattel mortgagee and an extwntinn creditor, U»e debtor and tiie cla- nt^i^Sthe onW^t^^Sf and although Uiey boUi .wore to v fto^ JdS o°the Sj^t?« S„r' Vr^ "^ *° -* ""»• a^rdkffS ?he «c^tSn «^lton {Ro9» V. Uaenel (1897), 23 U. C. L. J. 412 ) '"'™"°° I- -^*? ." *J?°® •"■ "^^ ••"t from the High CJourt for trial SSffl^«?* ?il*'**?' '»* ^°°* 'PP**'' »»"* ••»o«>d apply tor a prohibition. (Temple v. Temple (1894). 10 R. 269.) (18) AeftofM Btayea. n,^y,^^ ^^^^^^^ iMulng the Intwpleader .ummon. In the ravl.lon Court, any action which hi. been brought In the High Coiwt, or In a local or Infwlor Court In respect of the "aim, I. thereupon stayed. (Section 277 (1).) The ^plication to sUy proceedings must be made to the S'^/w \/!J£** **' *S? ^^- to *"«*» •««>» action Is pend- ing. (Watkinifton v. Webh (1888), IS U. C. Q. B. 282.) The defendant must prove the Inue of the .ummon., and that the good, and chattels, or property or Mcurtty. were taken In execution or upon attachment (Section 277 (2).) ♦v "^? ***^'* obiwrved. that when the Mctlon provides, that »• action .ball be .tayed, the word, umd can only mean that ■J..I. ^ 402 THE LAW OF INTXBPLEADER. the action i« tor the time delayed. The matter In dispute In the acUon li not thus finally dlaposed of. Howerer. by vlrtat of the full Jorlidlctlon glren the Dlvlalon Court Jadse by aeetion 277 (3). he has power to adjudicate upon any damage or claim arising or capable of arising out ot the execution of the process; and as will presently appear, if any party neglects to raise, or to have such damage or claim disposed of in the interpleader proceedings in the Division Court, it cannot afterwards be raised in an action in any other Court An action brought by the claimant against the bailift^ or other officer of the Court, will be stayed, eren though the goods were sold before the interpleader proceedings were commenced; but an action against the purchaser of the goods from the bailitr wiU not be sUyed. iSilU t. Rennp (1880), U R. 6 Bz. D. SIS.) Where a claimant replevied the goods which had been seised by the bailiir. upon the latter interpleading, it was held that the proceedings in the replevin action must be staged. (Caron v. Graham (1869), 18 U. C. Q. B. S16.) Before March SOth, 188S, the Division Court Judge could adjudicate upon the claim only. After that date, his powers were extended, so that he was bound to adjudicate between the execution creditor and the clalUant, or either of them and the baililf, in respect of any damage or claim arising or capable of arising out of the execution of the process by the balliit (section 277 (8). It has been held under this provision, that upon an interpleader proceeding in respect of a claim to goods taken In execution, any claims between the parties themselves for damages arising out of the execution of the process must also be brought before and be adjudicated upon by the Judge who hears the summons. Whether such claims are thus Yumagbt forward or not, the adjudication upon the summons is final and conclusive between the parties, and no action can after- wards be maintained In respect of them. (Fox v. SvminaUm (1886), IS Ont App. 2M; Death v. Harrlmm (1870), L. R. 6 Bx. 16.) Before 1886 it was held, that the Courts had no power to stay proceedings in an action brought after the adjudication by the Judge in the Division Court (Sekanuihom v. Tratke (1870), 30 U. C. Q. B. 643.) A successful claimant might afterwards sue the execution creditor, for damages for trespass In the selxure of the goods (Jonet v. WilHawu (1869), 4 H. * N. 706), and might also sue the bailiff (Farrow v. ToMn (1884). 10 Ont App. 69; Potter V. Pritchard (1867), 2 H. * N. 161). If the claimant were unsuccessful he was not allowed to sue the bailiff for trespass in selling the goods. (Jettop v. Crotclev (I860), 16 Q. B. 212; Ftnlttimn v. Hovoard (1853), 1 Ont Pr. 224.) If an action be brought after the interpleader bummons has been issued, and heard, the adjudication by the Division Court Judge may properly be pleaded as a defence (Fox v. Bymintton (1886), 13 Ont App. 296); and the regularity of the proceedings on the interpleader summons cannot be enquired into (Finlan- mM V. Howard (1863), 1 Ont Pr. 224); and where the minute made by a Division Court Judge was informal, in adjudging that the goods were "the property of the execution creditor," in- stead of saying that they were not the property of the claimant, it was held in substance a dismissal of the claimants claim, and a protection to the bailiff. (OUphant v. LetUe (1866), 24 U. C. Q. B. 898.) OBEGON. 403 brought an action to reoovSth!™ •♦ t^i^cJainiant. the bailiff »»de by the DlvlJton^S ?u^ Li:^ ''*ll *"** »»>• »«»»" coat. wa. WlTalent to iS2toJXt'^"«,.V'* ;?'"i°*°» 'rt"* miaaed. and waa final mS^^i»^ "** "'**" •»«»<* been dla- heoould not bThJSS to ifttirtJ. S!^i°i, V^* defendant. iS The wrongful Act of Vh. ni. ?-' ^ .°?'*' ''^P''- '^«>.) of a atrangerfi; nol ml^durt "r'^i'l^^.l^'' "^^^ ">« ««'^» W. «reue. ar. liable. ^Xr ?: C^'l^^. «%!"£. ^^ applicable to lnte?pl22£? iSli^J )^® f?°***' equitable rulea or the C3ode of ClVillweSro of^JMB^^",:!?,' ""*»' '"'"• I- •E order diacharglng the d«fi?Si»* ST' *^°'* answer, make W»rty, and subatUutoluch Lr«!??«^?' f"" liability to eithw order shall not be mJd« h^^ ♦i" ^ *"»<» ■• defendant sSS dellvep the Prop£y"Slts JLu, S'sS^S**^*™ *^* ">« <»«'«2nt direct, nor unless it ann«.«r*JSJr *.?*''' P«rson as the Court mar filed With the"'ci;rt'^??7he^y*5! ^t^"' °f «>« defen »«»™<"» as to on the hearing of the ioti^* °' **** defendant may be read pleader as followed In the c™irt^# ?£ "** Principles of inter- inter alia: We haTe no Court ^ ri.«^SSf^ *" Bngland, said PemltUng a party to intSSeS l2l ^' ^^^^ ""=*»«• «' CH«^ (1848). » Pa. St p 61- JftH^.i?'^ ^ *'*> ^«»^ ▼• Ctorto (1881), 16 PhiL 2M ^ "^' ^^ P«»- St 9; Philadelphkir. SUtuto'oTliVwwff^'S^ef ffl S*^ « °' "»• =»«"* ■ame year the PrincSes and m,^i!i k*°k?,1'*°'^°**' «"»d In the confirmed, m 1848 a p^'uiKr .Mi"?^^^^^^ SJlfiri^rK^H'^Si^^a^^^ ant »'^"yS?oi';LJaWrr;,Si;^"°^^'^^ <•«'-«- recovery of money, or of any «»d2^i?.»r. *''* ^^ ^"^ for the ta damages, which shii^yf^??*^*?'- *'»«'»»«• thereof possession, may at anv tim- -^fi lawfully to his hands or before ple^ plSdS by a .«Li^ the declaraUon filed, and claim all intSrSt 15 the anSf5"«^« *° ^ ^^ °' «>««'«> dls- to bring the iSme into cS«i?^„?V*" °' •'"^'> "^'^n and offer the Court BhaUorder Imd ?f h. -t.in**7 <>' , thereof as afflrmatlon that tS riSt theJ^^'„£" *»•«• »«»«>«• oath or belong to «,me person U ?SS £ ?Srio?(2un"?£raS J^ 404 THE LAW OF INTERPLEADER. 111 them), who has raed or ia ezpwtod to me for the Hune, or shall ahow Bome probable matter to the Cknirt to beUere that aueh soggeatioii ia true, the aaid party (Court) may therenpon order the plaintiff to interplead with snch third person, and make aueh ralea and orders in the cause and issue such process for the purpose of maldns such third person party to the action, and for carryins snch proeeedinsa to interplead into full and complete effect, and may render aueh Judgment or judgmente thereon as shall be agreeable to the rules and practices of the law in like cases. Section 6. If the process issued upon an order to interplead, as aforesaid, shall not be actually served, or personal notice thereof shall not be given to such third person, the said Court shall have power upon giving judgment for the plaintiff, to require him to enter into a recognisance, and if they shall think it necessary, with sufficient surety, to interplead with such third person, if afterwards, and before the expiration of the time which would be allowed to him to prosecute his claim against the defendant, such third person should appear in the said Court, and claim such money, or such goods or chattels or the value thereof. » Extended to Berks and Schuylkill counties by Act 27, March, 1848, P. L. 266. See Hoffman v. UcBriie (1838), 2 Miles Pa. 24, as 'to practice under. Remedy will lie in an action of trover, Tiena* v. BteOU 1 T. ft H. Pr." 438. _^ ^ _. . Publie Lav 789 of leth Jiiw, /M«.— Section 18. The Court of Common Pleas for the said City and County (of Philadelphia) shall besides the powers and Jurisdiction aforesaid, have the power and Jurisdiction of Courte of Chancery so far as relates to the determination of righto to property or money claimed by two or more persons, in the hands or possession of a person claiming no right of prcverty therein. PiMio Law 80 of t6th Mav, J897.— An Act relating to proceed- ings when goods or chattels have been levied upon or seised by the sheriff, and claimed to belong to others than the defendant In the execution or process. Section 1. Be it enacted, etc., that whenever goods and chattels have been levied upon or seized by the sheriff of any county under any execution or attachment process issued o^t of any Ck>urt of this Commonwealth, and the sheriff has be«i notified that said goods and chattels, or any part of them, belong to any pnrson or persons other than the defendant or defendanto in said execution or process, said sheriff shall enter a rule in the Ckturt out of which said execution or process issued x>n the supposed owner (hereinafter called the claimant), to show cause why an issue should not be framed to determine the ownership of said goods and chattels; notice of the said rule shall be given to the plaintiff and defendant in said execution or process, the claimant, and the person or persons found in possession of the goods and chattels levied upon or seised. Section 2. If the Court shall make said rule absolute, the claimant shall give bond to the Commonwealth of Pennsylvania with security to be approved by the Court in double the value of the goods and chattels claimed, conditioned that he shall at all times maintain his title to said goods and chattels and pay the value thereof to the party thereunto entitled, and thereupon the sheriff shall deliver said goods and chattels to the claimant PENNSYLVANIA. 406 I- ♦i?^* I: ^^"^ ''**"* •**•• •""" *® ">• »»»•«* of the plidntiff adjudf^ to hare the richt or UUe to Mid goods or cluitteta or to yjr^J^*?^- '^ -""^^^ ~»t« may bebro^ht tt2;S Section 4. M there be more than one execution or irrnrnM iti*^n'!;"^ "^^ «<»*• "* «»•»»••■• only one bSud^ehSTS lM^J°hi?-^"^.*'°* ."'. ''•'*'''' "»• "'^ execution or pSiJS lhiSrhJ'^*J"*l'*.v' ", '"tenWon to present security for apprml ^?«„*T^i.''»i°"'"* *? possession of such coods and chattels, ♦h. ^!^, *• }L *> «?*'*• •»«» chattels levied on are found in tne possession of the dtfendant In the execution or nrocees th« Court may permit the claimant to file his own b-SiT^n It being shown that the cUlmant does not derive his tUle tK^o by. -from or through, the said defendant mereto h* d«S^fnf;i IE* '*'»>lo' t»»e «oods and chattels claimed shall t^e'a'S'SJSrth'^rS'r SIS."**' '"^ "•* "'*'^''' '-''^ *<» -j3"cJ.|i2 sSi tr^s^m-^f 'f^rs^K :'hi?b-.ffii form part of the costs of the cause, and shaH be paid bv the claimant at the time of making his claims. If the drfendSt In ih!*.*^**"**°.° k'^31 ^ '°'"'«» »"» Possessloi of said pSSTand chattels, and by the plainUff in the execution if somTother ^^^, ^ ''"i?^ *° possession thereof. If the plaintiff in the ..«^ /JS' ^l *''® claimant, fails to pay said sum when required under this Act so to do, it shall be treated as an abandoSment S: S: '^ Sa?SJ *° '^"* ""' '^ "«• •'•^**«'- "'•'»">^"' «rt«^iM° '.P* »PI»«»»«» ▼■Ine thus ascertained shall be tiKJ^i!M« •*?•*. ^' "**."** ^"* »" «y proceeding touching the ownership of said goods and chattels, but at the trial the ^SJw'^k'"^,"?' "? * ^*''^*«* »"«* Judgment may be rendered Sri^riJln? ° "" *** ""* ^''"* °' ■*** '°°^ "•» <='"'"«»■ t«rn!*^Ml«i.K *••• ?'**^"" *° *•»« execution or process volun- ^H L-tl"^'*",*"'. °I *»«°'>on the lien of the levy upon the goods v*."«*l*®lf '®^*«** "P<"»' Of ■•»«e« "^'•rtff to the r!^^^hJ°}r^^ *i*® claimant may have an opportunity to take LE^nT *« ■'T^*'' Poeaession of the dalmed g«,^ Section 10. In the issue to be framed under this Act tha claimant shall be the plaintiff, and all othw Sa thereto shaU ?h«'!^.°,^''°*;»J'**.*P"* ■'^" """"'"t o' * ^«ee Statement of or hf^X».°'«"'f '2?*T'i*'?,""«' ■««°'^ ««<» "worn to by him, S«f«L!^?* °"f ,*° his behalf, and an affidavit to be flled by the defendant or defendanta in the issue that he verllv bellev«^ Ihl title Of the plaintiff therein to be invalid, anlSthSdefendSl fail or refuse to file said affidavit within fifteen daj^ Xr not*S Molt™** *? flle^»ame, the Court shall upon motton of t^ ctalmant enter Judgment against the defendant for want of sueh fm 406 THE LAW or IlfTERPLBADIR. •fBdarlt The Conrts ot oommon ptoaa may nuJu nacral rulM VOTernlnc Um prooawUnci under this AeTiot him^MMit h«^ '^"'^ in*jr gnuit bmt trtato of racit IwnM. ud the jndgnent Bopertor Court aa In other euae. By leave of Ckrart other SSiI*"J!!f ^.^ ^}^*^ ** laterrene and become partteo to the urae. with like rights and remedies as if made parUes at the commencement of the proceedinss. h. ■^'^♦ih^' »»«"»"»<« cWiBMt'B sutement of UUe shall S?.fi^ ***?*" ^? ''••'■ •"* *"• •«>«rtrs rule for an issue shall be made absolute, unless the Court, for cause shown^ shiai extend the Ume for doing so. "•«"»», snaii wi-^2?!i°?.":*^I the claimant fsil to sive a bond, but other- TiT.^Z^^ -tatement of UUe tTlUUn Uie time herein speelfled. thecourt m^. on moUon of Uie plainUff in Uie execution o^ 2SS?tn^ K*?*", ^F interested therein, direct a sale ot Uie 2r^-i^l.*^V/'? ?'^5?** " •'oresald. and Uie proceeds Uiere- (^shall be paid into Court to await the determinaUon of the •^•la©» SecUon 13. If upon the trial of said issue the UUe to said goods and chattels be found not to be in Uie claimant, he shall psy all the costs of said proceeding, including Uielitoinuioro" M'S ^ ?*!S^* '?: *^* »'^""« *» ">• execiTuon or prooB^ i cS!L?r ^fH, ^/ ^ Coiirt »nd the proceeds of said koods and Mthus ascertained If. howerer. said goods and chattels have Deen taken by the claimant, a yerdict and judgment for the value thweof shall be entered against the claimant and in ffcvour of the defendant in the issue. becUon 14. In all Issues framed under this Act all the costi or the proceedings shall follow the Judgment and be paid by the losing party as in other cases. «# *^^^ ^' "^ *i?® •''"*'' ■■**" comply with the provisions «r this Act. he shall be free from all liability to the claimant, the plalnUft and defendant in the execnUon. the person found in possession of the goods and chattels levied on or seised, and every other person who had knowledge of such levy or seixuro prior to the sale of said goods and chattels, or who shall Uke any step under the provisions of this Act Section 16. All Acts or parts of Acts inconsistent hwewlth be and the same are hereby repealed. P*iWte Law S3 0^^899.— Whenever a levy upon personal pro- P«ty shall be made on a teetotum fieri facias, and a dispute arises concerning the ownership of such property, the inter- pleader proceedings shall be carried on in the county where the property is, and Ue levy has been made. ^.^ ^'® *° Interplead must be entered in the Court out of n 1«^ the process issues: Biekleg v. Kramer (1897). 7 Pa. Dlst R. 401. The Act is not applicable to domestic attachment suits- MeCuOough v. Gnodhart (1899). 8 Pa. Dlst. R. 878. A rule for Issues will be made absolute on the return of the sheriff's rule with no answer by any of the parties: Meyer v. JeOce (1899) 8 Pa. Dlst R. 239. If a sheriff improperly postpone a sale at th*. instance of one only of several execution creditors he cannot have an Interpleader upon the other writs: Schofield ▼. Oatef- herrv (1879). » W. N. C. Pa. 96. It is the duty of a second nUNCX EDWARD I8LAKD. 407 ^fs^-LVirssji'i'^vs'.'s: ?,- M . .^ Sl <^"*1"»« «>• fourth McUon. By 56 Vict. P K iDteSSS^:,!;^* *" ^'^" Procedure doM not contain any D l!»^ 10^ owence or answer. See Consolidated SUtutea 18M Vict No. ir^ V) p lisi ' ^'* '^*''^ ^"^ "« 0'Z>o.«e» (18S9,. 1. R. L^^rWi^iiUuS?^ K^Sei:- to altSS^il?^"?!!!**"*!?"?* •■ *•>• *«™ «»▼•«» »» Scotch law SzHS ^ sriT rsua-f. 'ir, '^ Mrs Mu^^Tw^sTS orlJISTaiflSh^S/t.*!!!*/!^*^'^ lateroleader founded on the 408 THK LAW or INTERPLEADER. T. Bank of Bottth AtuirmUm (UTl). B Bonth Anstralla 6i; WiUUmt T. Carter (ir7«). 10 Boatli Awtnaia 1S6; Attome^-aenerml y Kwvti (1S77). 11 South Aostralla 86: Levime t. MeBetk (1879). li Booth Autnlla Itt. « /. u OwaUiub— BwUoB 148 of the C!od« of ClTil Pro- Mdnr*. A dtfcndant Malut whom an aeUon li pendlnc upon a contract or for speeifle. r«al or perwnal property, may at any time before answer upon affldavlt that a penon not a party to the action, and without collutlon by him, makes a^nst him a demand for the same debt or property, upon due noUce to such P*"""*'* '•*• idTeree party, apply to the Court for an order J? ..!?.*■***"*• ■"<* V«noa In his place and dlecharge him from liability to either party, on his depositing in Court the amount of the debt, or delirerlng the property or its value, to such person as the Court may direct, and the Court may in its discre- tion make the order. , ■•■** Dakata*— The sUtutory proTlslon goTeming inter- pleader, seeUon 6087 of the Code of ClTil Procedure, is the same as section 6840 of the North Dak«U Code. Tmumsso*.— The equitable principles of Interpleader are followed by the Courta: Pilloit v. Aldrid-je (1848), 4 Hump. 287- State Ineuranre Co. v. Oennert (1873). 2 Tenn. Ch. 82. There is the following provision in the Code: Section 8497. At any time before defence made, the defendant may apply to the Court or JusUce to substitute in his place any pmon. not already a party, who claims the money or property in suit, by tiling his affldavit staUng the facta on which he founds his application, showing that the right in the subject matter in controversy is in such third person that he (affiant) has no Interest in the suit, and may be exposed to the claim of two or more adverse parties, denying all collusion with the person sought to be subsUtuted, and proffering to pay the money or deliver the. property into the custody of the Court If on notice to the plaintiff and the person sought to be substituted as de- fendant, sufficient cause be shown, the Court may order the substitution and discharge the original defendant from liability to eitho- party, and make such disposition pending the suit, of the fund or property in controversy as to secure the money, property, or ita value to the party who shall prove to be entitled. Texas*— In this State the Courta recognise the equitable remedy of interpleader as applicable to their system, notwith- standing a party may perhaps protect himself under the practice of Intervention, by giving notice of the pendency of the suit to the other clainumt: Field v. Gautier (1852), 8 Tex. 74; WilUamg V. Wright (1867). 20 Tex. 600; Fop v. Boat Dallae Bank (1894), 28 8. W. Rep. Tex. 187. Steveng v. Oertnania (1901). 62 S. W. 824. There is no statutory Interpleader. Vtak.— The Revised Statutes of Utah, 1898, have the follow- ing sections on interpleader. Section 2921. A defendant against whom an action to recover upon a contract, or an SjCtton of ejectment, or an action for specific personal property is pending, may at any time heton answer, upon affidavit that a person not a party to the action vniiKnfT. 409 nakw Mkiaat bim, and wlthoat unj eollnalon with him. k denMBd apoa raeh oontnet, or tor inch property, upon notie* to Mch pwwB ud tho adTarM p«ty, apply to the Court for an orte to lubaUtat* raeh peraon In hla place, and dlacharie him firom liaMUty to either party, on hla depoaitlnc in Coort the amount claimed on the contract, or dellTertns the property or Ita ralne to raeh peraon aa the Court may direct, and the Court may In ita diaerction make the order. ,29^. The proTlaiona of the laat aecUon ahall be ao tar appll»ble to an aeUon broagbt afalnat a abertlT or other officer for the recovery of penonal property taken by him under an attachment or execution, or for the Talue of auch property ao Uken and aold by him. that upon exhtbitlnc to the Court the proceaa under which he acted, with hla affidavit that the pro- perty for the reoorery of which, or lU proceeda, the action waa broucht. waa taken under auch proceaa. he may have the attach- ing or execution creditor made a Joint defendant with bim. and if Judgment go agalnat them, it ahall provide that the property of auch creditor ahall be llrat exhauated in ntisfaction thereof. Section 2924. Whenever conflicting claims are or may be made upon a peraon for or relating to peraonal property, or the performance of an obligation, or any portion thereof, auch person may bring an action agalnat the conflicting claimanta to compel them to interplead and litigate their several claims among them- selves. The order of substitution may be made and the action of interpleader may be maintained, and the applicant or plain- tiir be discharged from liability to all or any of the conflicting claimants, although their titles or claims have not a common origin, or are not identical, but are adverae to and independent of one another. . VantoBt.— Bills of interpleads are resorted to and the equitable principles followed: Holmet v. Clark (1873). 46 Vt. 22; F»«ie» V. Robrchard (1877). 60 Vt 43. Section 907 of the Code of 1894 provides that, the Court of Chancery in Vermont shall have the same Jurladiction as the Court of Chancery had m England, except as modlfled by the laws of the State. There is one apecial provision under which a savings bank may inter- plead when a d^KMit la the subject of claims. SecUon 4090. laws of 1894. yietoria (Australia)— In this colony the English Inter- pleader Act of 1831 was enacted, as well as the Interpleade' sections of the English Act of 1860, Carter v. SterHbere (1884), 10 Victorian L. R, (Law) 38; while Interpleader in the Justices' Court Is awarded under an Act founded on the Bnaltsh County Court provisions relaUng to Interpleader: Coiuens v. McOee (1867). 4 W. W. ft A. (Victoria) 29. In Equity bills of Interpleader were made use of AuttraHan v. Brc 'bent (1877), 3 Victorian L. R. (Equity) 138. About 1884 the d. .-ts of Common Law and Equity were fused, and the English Judicature Acts and Rules were adopted. Order LVII. of the Victorian Supreme Court Rules of 1884 is a re-enactment of the present English Interpleader Rules. T B^iS^"'*"* ^*"'* * ^*^ ^°- ^- ^«»'<* 0&K), 11 Victorian u R. 793. It would seem that these Rules were repealed by the Supreme Court Act of 1890. and that the only provisions retained IB the section allowing interpleader to a debtor, trustee or other % , .if ■1 1 i 410 THE LAW OF INTESPLEADER. penon lUbl* In rMp«ct of a debt or ehoM In acUon. 64 Vict No 1141 I. ea (6). For interplMder In the JueUcee' Courts, aee ^ y/fL**"- ^^^' *- •*• "»•• ""''"' *^« Mines Act. 1890, 64 Vict No. 1120, s. 28S. Tiivlala.— The equlUble principles of Interpleader were 22 Lf*°^^\ *?rV- *'»»»"«* (1«8«). 9 Lel«h. 168; HoMltine v. «'^*^rJ"SS?' " °"»**' "': CMaapeake v. P«<«« (1877), 29 Oratt 602. The Code of 1887 has the following provisions found- ed upon the BngUsh Interpleader Act. SecUon 2998. Upon affldavlt of a defendant In any action tnat be claims no Interest in the subject matter of the suit but that some third party baa a claim thereto, and that he does not collude with such third party, but Is ready to pay or dispose of the subject matter of the action as the Court may direct, the court may make an order requiring such third party to appear and state the nature of his claim and maintain or relinquish It and m the meantime stay the proceedings In such acUon. If such third party on being served with such order, shall not appear, the Court may on proof, render a Judgment for him. and declare such third party to be, forever barred of any claim in respect of the subject matter, either against the plaintiff or tne original defendant or his personal representaUve. If such JiiH S?'*'* °° ^^. ■** •■*"*** •*'*** »»«»'• "»• Court shall allow him to make himself defendant in the acUon, and either in said action or otherwise, cause such issue or Issues to be H. ./■ I* ^'^^ prescribe, and may direct which party shall be considered the plaintiff in the Issues, and shall give Judgment upon the verdict rendered upon such trial, or if a Jury be waived by the parUes interested, shall determine their claims in a summary way. SecUon 2999. When property of the value of more than twenty dollars is taken under a warrant of distress, or under an execution issued by a Justice, or when property of any value Is token under an execution issued by the clerk of a Court and any person other than the party against whom the process l?* «; ""i™" ""cJi property or the proceeds or value thereof, the Circuit or County Court of the County, or the Circuit or COTporatlon Court of the Corporation in which the propMty Is taken, or the Judge of such Circuit or CraUon Court in va«»tlon upon the application of the officer, when no Indem- "''^«'*..'*°°*-''** '**'» «*^*°' <»• *' o°« »»*■ been given, on the appllcaUon of the person who claims such property and has given such suspending bond as is hereinafter mentioned, may cause to appear before such Court as well the party Issuing such process as the party making such claim, and such Court may exercise, for the decision of their righta all or any of the powers and authority prescribed in the preceding section. Section 8000. Such Court on the application of the party issuing such process, may cause to appear before it the party "?r'y^ '"*'' *''•*"• "•* "*y exercise the like powers and authority. In such case as is mentioned in this or the preceding ■ectlon, the Court where no bond is given for the forthcoming of the property, or if it be a Circuit or Corporation Court, the Judge thereof In vacation may, before a decision of the righta, make an order for the sale of the property, or any part thereof WAHBUIOION. 411 on laeli terns u the «l In tula ebuKir th. Omit S-iSR "*; ""^ nU inch rule. M.d onUrTSd 'eMSr ^S JoJ»»t M to eo«. Md Ul otl»r muur. u m« "!St S !! "S.^k"'™'".?'^' •« >• «■• owner Sf, SSuia io inSrSS nojr part thereof , may commence an action In thV^»»ri« ««irS'.'S;.i°uS"mlfS.sr.ST.te°4Jt".n"'S,l'tSS'« on b«liit served with a copy of luch ord«r. »hM not Spear. S 412 THE LAW OF IlfTERPLEADER. Court mfty, on proof of the pUlntlira right, r«nd«r lodgment for him, and declare auch third party to be forerer barred of any claim In respect of the aubjeet mattnr, either i«alnat the plain- tlfr or the original defendant, or his personal rqireeentatlTe. It such third party, on being so aenred, shall appear, the Conrt shall allow him to make himself dtfendant In the action, and either In said action or otherwise, cause snch Issue or issues to be tried as It may prescribe, and may direct which party shall be considered the plaintiff in the Issues; and shall give Judgment upon the Terdlct rendered, or if a Jury be waived by the parties Interested, shall determine their claims In a summary way. The Court may also make such order for the disposition of the money or proiterty which is the subject matter of the action, pending the same, as It may seem proper. Section 6. When property of the value of more than fifty dollars Is taken under a warrant of distress, or when property of any value Is taken under an execution Issued by the clerk of the Court. anB any person other than the party against whom the process issued, claims such property or the proceeds or value thereof, the Circuit Court of the county in which the property is taken, or the Judge thereof in vacation, upon the application of the officer, where no indemnifying bond has been given, or if one has been given, on the application of the person who claims such property, and has given such suspendins ^ond as is men- tioned in the next preceding se^lon, may cause . t appear before such Court, as well the party issuing such process as the party making such claim, and snch Court may exercise, for the deci- sion of their rights, all or any of the powers and authmity pre- scribed in the first section of this cbwter. Section 6. Such Court, on the application of the party Issuing said process, may cause to appear heian It the party making such claim, and may exercise the like powers and authwity. In such case as Is mentioned in this or the preceding section the Court, where no bond Is given fbr the forthcoming of the pro- perty, or the Judge therectf In vacation may, before a decision of the rights of the parties, make an order for the sale of the pro- perty or any part thereof, on such terms as the Court or Judge may deem advisable, and for the proper qipllcatlon of the proceeds according to the said rii^ts. In any ease before men- tioned in this chapter, the Court may make all such rules and orders, and entto such Judgment as to costs and all other matters ss may be Just and proper. Wiaeoasla.— In intwrpleader the ordinary equitable prin- ciples are followed: Bamter v. Datf (1888), 73 Wis. 27; Oaynor v. BletceU (1893), 66 N. W. Rep. 169. The Revised Statutes conUin the following provision: Section 2610. A defendant against whom an action is pending upon a contract, or for specific, real or personal property, or for the conversion thereof, may at any time before answer, upon affidavit that a person not a party to the action and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party apply to the Court for an order to substitute such person in his place and discharge him from liability to either party, on his depositing in Conrt the amount of the debt, or WYOMING. 413 deUTWlnc the property or Its value to rach perMn m the Court ^"^^^^^ *°* *•** ^"^ "»»y I" **» dlwa-eUon make the fjrder. FroTlaion is alao made In fection 2767 under T.hlch a gaml- Aee may be reUeved when the debt gamiahed is claimed by a tnird i«rty; and a further provision is found in section 8723 b It bu been suggested that when an action is for trover and not replevin, it is probably not within section 2610. which provides for substituting a third person as defendant in actions upon ?*???^ ?^JS^ "R?^®' "** *"" P«™onal property. See Churehill V. W«Ic» (187»), 47 Wis. 89. Wyo«l««.— This State has adopted the Ohio Code of Civil Cr^'"*'-'SL*''** sections 2406, 2406 and 2407 of the Revised Statutes of Wyoming, 1887, providing for interpleader by de- fendants, and sheriffs are identical with sections 5016, 5017 and 6018 of the Ohio Code. It is proper under section 2407 in an action of replevin for property taken under an execution to substitute the execution 'creditor as defendant in the place of the sheriff: France v. Firtt National Bank of Omaha (1888). 3 Wyo. 187. INDEX. ABATBMBNT. throush death of cUlmant, Ml. -^ ACCBPTOR OP BILL, when allowed to Interplead, 84. ACTION, when brousht in different counties 8 of Interpleader, 18-l», lei. when eherlff may bring, 44. directed between elalmanta, 173, 207. practice when continued, 174. ■t»y^ by inJuncUmi, 196. pending Interpleader no action should be brought 199 which win be stayed, 209, 220. should be referred to in order, 210 on bond, 214, 229. ACnONT 18 AN INTERPLEADER AN what is an interpleader. 244. Ust of 4eeislons, 244-263. not reconcilable, 268. torm of interpleader proceedings, 263 force and effect of remedy, 268. why it should be looked on as an acUon. 264. •cuon, cause, suit, 264. n*rrow view in England, 266. oonrect view in England, 256. view in the United SUtes, 266. when not in an action, 266. •Mmple ffom sherirs case, 266. settled by statute in Ontario, 262 M to appeals, 326. ^*^h«™ ™iJ!'^''^^ ^^ INTERPLEADER, I'eaaons for the proceeding. 838. when resorted to, 888. the object. 388. ¥■ 416 IMBKX. ACTION IN THB NATURE OF INTBRPLBADinR-Coiittaiicrf. may aaaert an interMt, 839. ne«d not deny coUuilon. 339. need not pay Into Court, 839. nature of elalmi, 340. injunction, 840. mortga«or, ». 340. person entitled to equlUWe reUef, 340. purchaser, 340. owner of new bulldlnc, S4L trustee or executor, 341. receiver, 841. Judsment debtor. 341. Uxpayer, 27, 341. person Itable on a contract, 342. municipal corporation. 842. creditor cannot have relief, 343. in Connecticut, 848. * in New York. 843, in FennsylTanla, 843. in Louisiana, 348. ADMINISTRATOR, allowed reUef, 27-29. refused relief, 27, 66. when a claimant, 67, 104, 138. must have been appointed, 138. ADMISSIONS, may be ordered. 181. by the applicant, 282. by execution debtor, 282. ADVBRSB CLAIMANT, when plainUfl in sheriff's cases, 177. AFFIDAVIT. by applicant, 164. of no collusion, 10, 52-69, 168. explalnlns delay, 61. only aflldaTit in eaulty. 68, by sheriff when goods taken from claimant, 96. by execution creditor. 96. as to doubt from claims, 180. defective affldavit, 186. under Act of 1881. 137. by claimant. 168. how lenUUed. 169. by whom made. 170. INDBX. 417 AOSNT. allowed reUaC. t. 29-SO. 124. nfosad r«U«f. SS-JO. US. euwot Intarplcwl for prtneiiwl, S8. may make affldavlt of no eaUmlon, 66. when a claimant, 107. 274. ALABAMA. defendant in action. 2S. deficient claim. 126. bailor and baUee, 167. pleading, 174. naee eqniUble remedy. 246. Interpleader statute. 245. ALASKA. defendant In action. 22. interpleader statute. 246. APPKAL, does not warrant disobedience to order, 88. when (oods disappear before. 236, 332. disposition of goods pending, 242. must be prosecuted with diligence, 242. from Judnaent as final or interlocutory, 244, 245, 246, 247. as affected by meaning of interpleader proceeding. 244-249 CHAracB ow, 226-827. two classes of, 226. always sUtutory, 226. general provisions, 225. final or Intwloeutory. 226. •11 three parties may appeal, 227, when applicant cannot, 227. when dainuutt cannot, 828. execution debtor cannot, 828. Bnglish statute limiting, 828. from summary decisions, 329. final order in Chambers, 220. from judgment on trial of Issue, 33L special eaae, 222. from orders without Jurisdiction, 382. from orders as to costs, 332. when merits not tried, 338. when fund paid over, 333, 236. new matter cannot be used, 382. error c(»Tected without, 334. cases where vpeals refused, 884. if first order Irregular, 836. K.L.I. ^ 418 nroiz. APPaAI/-€toii#toiMi. prolilMUoB. SS8. ewilonurl, 888. when ordar «itltl«d In two dlTtetons, 886. from infoior Conrts. 888. OMM In interior Cooiti, 886. d^crmlna instead of n«w trial. 888. APPUCANT. when he diee, 8. hie position, 8, 188. the Cioort fIsTonrs, 8. most not hsTs eaosed his own dlfflealty, 4. not obliged to interplwd, 8. liability when he does not interplMd, 8. no relief if liable to both claimants. 7. no relief when claimants are litigating between themselves, IS. may Interplead notwithstauUng he has defence to action. 17, 71. the cwposite also held, 188. in equity. 88. under interpleader acts. 88. enumerated, 84-48. soUdtor. 29. attorn^. 89. railway company, 80. carrier, 80. bailee. 80. ship detain. 80. harbour commissioners. 80. war^onseman, 81. auctioneer. 81. 88. trustee, 81. debtor, 88. garnishee, 88-84. acceptor of a bill, 84. maker of a> note^ 84. municipal corp<»«tion, 84. a bank, 86. safety dwosit company, 86. insurance company, 86. lottery company, 86. > - " purehasw, 86, 88. hotel guest, 88. bishtw, 86. Church onicers. ov. nroKx. APPUOANT-CoiiltoiMl. 410 for endlton, n, U, H9. elalauuit. ST. •■•at. n. owa«r of bolldlac tt. tax ooUeetor. S9. Judicial offiocn, W. ■hcrtff. n-49. muit Mck raUef promptlj, M. moat not take iMne with plaintiff, 49. moat not eollad*. n-S9. ■abjMt noit coma proparly to hla haada, B9. If a wroncdoer to either eUlmant, 60. If he haa canaed hto own dlffleolty, 60. ^' If liable to both clalmanta, 6X. most not ezerdae dlaeretlon, 61. mnat atand Indifferent 64. moat have no Intereat, 64. when arreated by one elalaant. 66. when he haa admitted one claim, 67. when haa doty to perftnrm. 67. muat claim no Intweet. 11. 68-7L mle In Scotland. 69. ani^iah Act of 18S1. 69. claim for oommlaalon, frelcht, etc.. 12, 69. the rule relaxed, 69. when he haa a perwnal QoeaUon. 69. if rl^ta aaaerted agatnat elaimanta. 71. It denlea legality of claim. 71. moat admit llabUlty. 72. when put of debt dlapnted. 72. when eatopped from claiming an Intereat 74 cannot change hla mind. 74. mnat ahow apeelllc fooda. 76. mnat brine anbject matter Into Court. 87. muat be In poe a eae l on of anbject, 9L o3tT to pay yalue. 92. ahould offer to pay Intereat If claimed 96 ahould Inreatlsate olalma. 126. aubmlt claim to other claimant. 127. how much mnat be ahown of clalma. 128 la not a claimant, 128. !2i«!!?'^. *?.*•***• *^ «n«aUona aa to the clalma. 124. •ntltUns of hie appUeaUon. 168. ^^ lAdaTlt by, 164. poaltlon when order made. 188. . '»1 i ■ 420 IHDEX. APPUCANT-ComMmmA wh«D vroteetloB mar be kMt, tOl. xwnoaal •etton agalint 204. iBMj retain poMMiioB, 227. ■lioold olwT ord«r. 227. It •ppUeatlon ntoMd, 242. gets bis ootti. 2M. may lose his eosts, 296. may hars to pay costs, 297. oosts of action against. 305. See Afpbais. APPUCATION. by blU of Interpleader. 168. the hearinc, 1B9. the decree, 160. modem action of Interpleader, 161. form of. under Statutes, 162^ 210. how enUUed. 163, 210. parties to, 163. senrloe, 163. appUcant's aflldaTlt. 164. sheriCs affldarlt. 164. where made, 165. Ontario County Court. 166. If neither claimant appear, 166. If one claimant appear, 166. obligation on claimant appearing, 167. axeentlon creditor claiming or abandoning, 168. claimants aildaTlt, 168. summary disposition, 171. by consent. 171. when subject small In value. 171 where a auestlon of law, 172. other eases, 173. special esse, 178. action may be directed, 173. practice when action continued, 174. Issue may be directed, 174. contents of order, 176. feigned Issue. 176. simple issue, 176. . preparation and delivery of Issue, 176. infant plalntUt, 176. plalnUff lb Issue, 176. object of the issue, 179. form of the Issue, 180. other anestlons than a mere issue, 181. nroBz. 411 APPUOATION— CmMnmA tioM from whleh tltl* diowii. m. if plalatlff lUl to ddlTOT IwM. 1S4. tern MBt to iafarfor Ooort. 184. tea* misgwted br Ooort, US. aor* thaa om iaaa* nay be uaemmrr, ISC , J«T. IW. uppUcMnts position whm order mmdo, 181. irbar* ten* filed and tried, 188. M^;c-t oC trial. 188. tame directed to stand, 188. dlaeorery and Inspection, 180. pardcnlars, 181. non-snlt, 18L Issne cannot be amended, 181. scope of Issue limited, 18L matters reserred ontll after trial, 181. Interloeatory matters, 188. final matters, IM. arrangement bjr consent. 185. APPRAISmOBNT, •ipenses of. 887. when sheriff tslls to have made, 888. bond settled by sheriffs, 888. ARBITRATORS, power to choss In Interpleader, 848. ARIZONA, has no statute, 846. ARKAN8AS. defendant In action, 88. sheriff, 42. uses equitable remedy, 847. also has statute. 847. AssiONmg, for creditors. 87, 68. lOB. when a claimant, 64. when goods taken from, for creditors. 95. when assignee In Insolvency a clalmant,105. 8m BARKBrPTOT. ASSIONMBNT. when disputed, 98, 143. See Barkbuftot. ATTACHMBNT, of sheriff. 46. 60, 262. claimant In. 189. writ of, against sheriff. 801 4IS DfOKX ATTORNBT. •llowtd r«ltoC. M, Tt. rafMMdi W. MOP* of hte iBatToeUoM, US, til. protaetlOB to, HI. AucnoNnR. whtn aUow«d to iBtwplMd, U, 19. wbM rafuMd. able fonndatton. 18S. - ml* in Scotland. 182. there must be doubt and hasard, ISS. reason for the rule. ISS. decree of donbt which must exlat, 1S4. mnat be an actual aeeond claim. 1S4. one claim must be luceeesful. 1S6. if one claim Is TaUd. 136. if one claimant can glre discharge. 1S6. must be more than an idle threat, 1S7. must be mature, 1S7. if one claim obviously bad. 1S8. cases in which relief refused. 1S8. when a written assignment, 14i. claims acceding to priorities. 148. claim withdrawn and another made, 14S. when claim disappears, 146. when fact that claim made disputed, 146. on sherift before execution. 142. when not eo-eztenalTe. 148. the institution of proceedings, 162. affidavit embodying, 168-170. contest of. in sherUTs cases, 240. by assignee in insolTency. 260. claimant bound by first. 274. CLAIMANT. compelled to interplead. 1. cannot oblige stakeholder to Interplead. 6 cannot oblige sheriff to interplead, 44. landlord. 26. 111. mortgagee, 26. mechanic's llenholder. 26, 88. tax collector, 27, 66, 107. legatee, 27. next of kin, 27. BoUcitor, 28. 36. heir. 28. deTlsee, 28. engineer. 86. school board. 87. kirk session, '87. chattel mortgagee, 37, 224-226, 283. claimant cannot interplead. 37. but can in Scotland. 37. nn>Kx. CLAIMANT— CoiiMiHMtf. eontnetor, S8. nb-contractor, n. hurdshliw In tharUrs intarplMtder, 46. oBeer in anplor of tbme'li, t». •state acenta, 92, 76. aeentor. 6S, 104. admlniiArator. 67. 104. wife. 68. lOS. 288. aiaignee In bankniiitcy, 64. In priaon, 67. applicant cannot assart rights against. 71. who is not present, 72. not obliged to Interplead till money in Court. 89. when goods taken from, by sheriff, 96 intorest between, 97. all should be brought in, 98. the number ot. 99. under British stotntes, 99. United States codes. 100. in sheriffs cases. 100. 101. claimant himself appearing. 100. meaning of term, 101. duty of claimant. 101. the crown, 102. the United States, 103. children, 104. trustee. 104. cestui que trust, 104. an infant. 104. religious society. 106. reeeirer. 106, 227. sberiff, 105. creditor. 105. execution debtor, 106. partner, 107. agent, 107. foreign claimants, 107-110. in dual capacity, 116. two claimants but no conflict, 116. when new claimant appears, 115. substitution of new claimant, 117. position when interpleader refused, 117. there must always be two claimants. 99, 208. both plaintiff and defendant, 116. there must always be a question behind two, 128, 4f7 r ■ ! ii liM 418 IMDXX. CLAXMUJn—OoHtlmmi. om wbo ankM no elaim not m vropw^varty. ISi. If mtther antttted, 1S5. whm DO OB* has claim, UC iitwmilniiliiK, cannot claim again. M6, UC if to do not appear, m. rii^itB b ct w a cn clalmaota, 168, 216. obilsatlon on, 167. if ht9 decline an inue, 168. aOdarlt by, 168. should not bring action until time lor Interpleader, 190. both claimants restrained, 208. sheriff's action to recorer goods fmm, 213. injunction in favour of, 216. rVits asBlaat execution creditor, 216-217. may take goods on giving security, 229. when the claimants settle, 237. > when one abandons, 237. rti^ts if successful. 288. clai m ants who participate, 240. when each claimant haa an interest, 241. neither claimant entitlad, 241. Voonds which he may Mt up, 269. he has a limited tttle, 273. he must show agiinst an execution, 276. what he must show to sneoeed, ^2. coats between daimaats, 360. coats whrn. he does not appear, SOL coats of, in sherirs cases, 802. CODIFICATION. eflteet of. 19, 20. COLLUSION, interpleader must not be used coUusivriy, 10, 62-59. affldarit of, no collusion in equity, 52. und«r Interpleader Acts, 62. meaning of ooUusion, 62. impartiality must continue, 68. examples ot. SB. form of affldavit, 64. by whom affidavit made. 66. in case of a corporation, 66. affidavit of sheriff, 66. if an indemnity has been taken, 66. rebutting affidavit, 67. when no affidavit Is flted, 68. sheriff Interested through under sheriff, 68. in proceeding !n tb© nsture of Interpleader, 339. IKDEX. cofxnnss. ■acllBli Act not in force in, M. COLORADO. defendant In action, 23. interpleader itatnte, S48. COMMISSION. claimed by applicant, 70, 72. nbject of interpleader, 76, 86. to take eridence. 190. eridenoe under, 282. COMPENSATION. conflicting claims to, 891. COMPULSORY, interpleader by aheriir not, M. C0NNBX3TICDT, no affldavit as to coUiuion, 52, 849. subject not brought into Court. 91. in the nature of interpleader, 348. 349. statute. 349. CONSBNT, to sununary disposition, 17L arrangement between claimants by, 195. Aerilt not bound to act without order, 195. CONBTABLB, may have relief. 43. CONTEMPT OP COURT, In interpleader, 213. CONSTRUCTION, the Court favours the applicant, 3, 60. sUtutes construed liberally. 4, 264. liberal to the sherlft, 69. restrictions removed, 153. CONTRACTUAL RELATION, between applicant and claimant, 149, 164, 166. modem view, 156. CONVERSION, sale in interpleader not a, 197, 226. COPYRIOHT, conflicting claims for, 391. CORONER, may Interplead, 4C. costs of, 280. CORRIGENDA, line 18 ior " principle " read " principal." 29. line 16 for 'estopped" r«i4 "stopped," 86. note 20 for " Storey's " reaa " Stc-frs," 121 m ?f J 480 nroix. CORRIOBNDA^-<7oiilpllcant In, 23. equlUble jurisdiction, 120. B8TATB AQBNT, when a clalnumt, 84. 124. SSTOPPBL. applicant cut off from subject matter. 74. when disregarded. 162. wben claimant can raise against sberlff, 228. when creditor takes money out of Court, 286. creditor not bound when debtor would be, 280. sheriff not bound by, of debtor, 280. SVIDBNCB. differs in the two litigations Involved, 6. proof of the claims, 130. when fact that claim made disputed, 146. of execution debtor, 170, 282. , by aflidaTlt, 168-171. effect of injunction on, 213. on action on Interpleader bond, 214. at the trial. 268. depends on form of proceeding, 268. construction of the issue, 268. the onus, 269. Bee Onus. grounds which claimants may set up, 269. technical objections, 269. matters not controvertible, 270. Judgment and execution as. 272. when plalnUff shows title to part, 272. claimant with limited title. 27S. rule in sheriff's cases, 273. claimant bound by first claim, 274. what claimant must show against execution, 276. when claimant may not raise Jus tertll, 277. when claimant may set up Jus tertll, 278. when creditor may set up Jus tertll. 279. when creditor cannot set up Jus tertll, 279. questions of estoppel, 280. when title outstanding, 281. when it does not appear who is entitled, 281. restricted to subject in dispute, 282. admissions by applicant, 282. married woman in Pennsylvania, 283. claims under chattel mortgages, 283. INDKX. BVIDENCB— Conllttii««l. QOMtloiis of mlaUke. 284. the Jury. i66. rnlM goTernlng admiMdblllty, 269. 270. plaintiff entlUed to addnw Jury first, 286. upon application tor new trial, 888. EXAMINATION FOR DISCOVERT, upon Inue, 248. 262. EXECUTION. balance, after satiafyins, 80. foundation ol. creditor's claim. 170. effect ot, 182-183, 224. stayed unUl issue determined, 200. effect of interpleader bond <». 284. as evidence. 272. evidence for and against. 276-279. EXECUTION CREDITOR. when two claim, 61. 144. 170. when, must give security. 96. sheriff must submit claim to, 127. service on agent of, 164. sheriff's position, when he abandons. 168. generally need not lie affidavit, 170. when necessary, 170. validity of Judgment, 181. rights against sheriff. 200. protection to, 216. 218. lipiblltty to claimant. 216-217. damages for which liable. 217. cases y haTe relief, 4I. LOTTERY COlfPANT, hM been allowed relief. U. LOUISIANA, In the nature of Interpleader. S4S. equitable principiee recognised, 367. no statatory remedr. «67. MAINS, blUa of Interpleader, 867. no atatttte, 867. MAKER OF NOTE. when allowed interpleader, 84. 166. refused relief, 66. MANDAMUS. interpleader In, 89. MANITOBA, applicant in. 28. claims need not be connected, 126. restrainins causes, 211. statutes in force, 868. MARRIED WOMAN, when a claimant, 108, 288. claim as doweress, 243. costa of, 268. MARYLAND, lienholdera in, 38. bills of interpleader used, 373. statutory provisions, 873. MASSACHUSETTS, defendant in action, 23. collusion, 68. interpleader as to part, 73. equitable claims. 122. bills of interpleader used, 373. statute, 373. MASTER, refused relief 142. Jurisdiction of in interpleader, 166. power, over costa, 289. MATURE. claims must be. 137. in case of landlord, 137. 447 Ij I 448 INDKX. I, '■ MAXIMS, portior ett eonditio defendentU, 281. interat reimbUcae et «t Unit im»m, tn. MECHANIC'S LIEN, when claim a. 27. MICHIGAN. bills of interpleader used, 874. no statute, 374. MINNESOTA, defendant :n action, 23. eauiUble principles followed, 374. statute, 874. v MISSISSIPPI, defendant in an action, 23. garnishee, 33. sheriff, 42. equiUble principles followed, 376. statute in force, 876. MISSOURI, bills of interpleader used, 876. no statute. 376. MISTAKE, question of, 284. amendment, because of, 286. MODERN ACTION OF INTERPLEADER. the steps In, 18-19, 161-162. MONET, subject of interpleader. 76. any legal tender will answer, 77. position of money lender, 226. MONTANA, action of interpleader, 19, 120. applicant in, 23. claims need not be connected. 126. bills of interpleader used, 376. statute, 376. MORTGAGEE. allowed relief. 26, 77. second, claiming, 278. MORTGAGOR, allowed relief, 26. refused relief, 186. relief in nature of Interpleader, 340. MOTION, notice of, 162. INOKX. MULTIPLBPOINDINO, In £lcotlmnd, 20-22. railway company, 30. tniat«A, 81. debtor. 32. churcb offlcen, 86. claimant can raise proceeding, 37. applicant may have an Interest, 69. consignation of debt, 89. new claimant In, 116. must be double distress, 118. What must be shown of the claims. 132, 137, 188 new claim. 146. damages for sale of goods, 197. does not stop execution. 201. ■ecurlty for costs, 810. MULTIPLICITY OP SUITS, interpleader awarded to prevent T MUNICIPAL CORPORATION. allowed relief. 34. v,»^"®' *" °**"" °' Interpleader. 342. NEBRASKA, defendant in action. 23. sberlfr. 42. statute, 376. NEVADA. defendant in action. 23. bills of interpleader used. 377 statute. 377. NEW BRUNSWICK. defendant In action, 23. statute, 3?7. NEWFOUNDLAND. interpleader statute, 878. NEW HAMPSHIRE. equitable principles followed, 878. no statute, 879. NEW JERSBT. affldavit of no collusion. 62. more than debt claimed. 74. bills of interpleader employed, 379. no statutory Interpleader, 379. NEW MEXICO, has no interpleader process, 879. MMl. 449 ^1 460 INDKX. NEW SOUTH WALES. defendant In action, 23. construction of luue. 276. has adopted English Act, 379. NEWSPAPER, proprietor of, may Interplead, 151. NEW TRIAL. costs when ordered, 321 NEW YORK, English Act Introduced, 1861, 16, 379. defendant in action, 23. contractual relation, 167. when injunction may be moved for, 220. In the nature of interpleader, 348. statutory provisions, 379. NEW ZEALAND, applicant In, 23. i power to award costs, 303. has adopted the English Statute, 380. NEXT FRIEND. when necessary, 106, 176. NON SUIT, may be directed. 191. when claimant suffers, 239. NORTH CAROLINA, defendant in action, 23. follow equitable principles, 380. statute, 380. NORTH DAKOTA, defendant in action, 28. statute, 380. NORTH-WEST TERRITORIES. applicant in, 23. claims need not be connected, 126. Interpleader rules, 381. NOTICE. of trial should be given, 189, 24S. See Applicant. See Applicatioit. NOVA SCOTIA. applicant in, 23. claims need not be connected, 126. has adopted, English statute, 883. OBJECT OF INTERPLEADER, to protect .a stakeholder or officer, S. object of the Issue, 179. INDEX. OFFICER, Bubordlute Judicial, S9. Muter in Cbancery, 89. partition commiaaionera, S9. of inferior C!ourta, 43. 8ee Otbkb Ofticeb. OHIO, equitable action surrlTea, 19. 388. defendant in action, 23, 49. ahoriff. 48. atatute. 383 OKLAHOMA, defendant in action. 23. alieriir. 42. atatute, 384. ONTARIO, interpleader statutes in, 15, 386-390. eifect of codification, 20. applicant in, 23. claims need not be connected, 125. in County Court, 165, 184. in District Court, 166. in Division Court. 184. 391-403. old Chancery powws preserved, 186. restraining causes, 211. provision for sherirs coste, 291. In case of delay, 60. in bankruptcy, 259. in framing issue, 269. on plaintiff claimant. 278. when both.titlea defecUve. 281 ORDER. if rescinded without notice to sheriff, 208 Bee Appucatiow. ORIGIN OF REMEDY, in England, 6. OREGON, defendant in action, 28. collusion, 52. equitable principles followed, 408. statute, 403. OTHER OFFICER, lord of manor, 48. coroner, 43. receiver, 43. 461 452 INDEX. OTHBR OFFICBR— ConMmied. under iheriff, 48. deputy •herlff, 4S. constable, 48. ellaor, 48. OUTSTANDINO TITLE, effect of. 281. OWNBR OF BUILDING, may interplead. 88. relief refosed, 166. relief in nature of Interpleader. 341. PARTICULARS OF CLAIM, how much must be set out, 128-129. 169. from claimant in sheriff's cases, 19. PARTITION COMHISSIONBR8, refused reliet 14L PARTNER, i partnei-ship refut-d elief, 64. when a claimant. JlC7. when execution debtor a firm, 260. PARTY. Bee CLAnuLm. who are Joined. 163. PATENTS. when conflicting claims for, 891. PAYMENT. effect of payment into Court. 72. 284, 288. applicant must be willing to make. 87. proceeding in the nature of interpleader, 889. PENNSYLVANIA, English Act introduced 1836, 16, 408. action of interpleader, 19. applicant in. 28. sheriff, 42. form of application. 162. claimant's aflldavlt. 168. in the nature ot interpleader, 848. issue directed, 176. plaintiff in issue. 177. questions for Jury. 1«7. sheriff protected, 198. right of claimant against creditor, 217. interpleader bend, 280-281. Claimant bound by first claim, 274. statutes in force, 408. INDEX. PERSONAL LIAdlUTT, ^Bee IlTDXPEflUEMT LlABIUTT, 147, 167. PETITION, by. In Interpleader, 162. PLAINTIFF, when he dlei. 8. which party made, 7, 176-179, 26Sl affldavit to show who should be, 170. proceed to trial without delay, 189. immaterial which party is, 269. PLEADING, ^hen action continued, 174. Bee AppLicATioir. POSSESSION, determines plainUtr in issue, 177-178. Bee XhsposmoiT op Subject Matter. evidence as to. 274. effect