garnishee order nisi under the C. L. P. Act, 1854, s. 61, before a liquidation petition had been presented, was a creditor "holding a security" upon the property of the bankrupt within the Bankruptcy Act, 1869, s. 12: Lowe v. Blakemore, L. R. 10 Q. B. 485; Emanuel v. Bridger, L. R. 9 Q. B. 286; Slater v. Pinder, L. R. 6 Ex. 228; 7 Ex. 95; Exp. Rocke, 6 Ch. 795; and see Stevens v. Phelips, 10 Ch. 417, 422.

A garnishee order nisi ought not to be made absolute if there is a reasonable suggestion that the judgment debtor is a trustee of the debt sought to be attached, but the money should be paid into Court to abide the event of inquiry: Roberts v. Death, 8 Q. B. Div. 319.

An order attaching a debt due from exors should show on its face that they are charged in their representative capacity: Burton v. Roberts, 29 L. J. Ex. 484; and see Stevens v. Phelips, 10 Ch. 417.

Bankers on whom a garnishee order is served, are justified in declining to honour their customers' cheques until the order is discharged: Rogers v. Whiteley, 23 Q. B. D. 236.

Notwithstanding O. XLII. 22, a garnishee may be ordered to pay although more than six years have elapsed since the judgment: Fellows v. Thornton, 14 Q. B. D. 335.

Where the debt attached is the subject of an action, the judgment creditor is entitled to be added as co-Plt, but not necessarily to the conduct of the action: Wallis v. Smith, 51 L. J. Ch. 577; 46 L. T. Ñ.S. 473.

Execution was allowed to issue under a garnishee order, though there was in fact no attachable debt at the time when the order was made: Randall v. Lithgow, 12 Q. B. D. 525.

A foreign attachment, being merely a personal process to compel appearance in an action of debt (under the custom of London in the Mayor's Court: see London Joint Stock Bank v. London Corporation, 5 C. P. Div. 494; Mayor of London v. London Joint Stock Bank, 6 App. Ca. 393; at Bristol in the Tolsey Court: see Exp. Sear, Re Price, 17 Ch. Div. 74), did not, when not perfected by judgment in the action before the commencement of the Deft's bankruptcy, give the creditor a charge or security on the bankrupt's property within sect. 12 of the Bankruptcy Act, 1869: Levy v. Lovell, 14 Ch. Div. 234, 238 (reversing 11 Ch. D. 220); Richter v. Laxton, 27 W. R. 214; not following London Cotton Mills Co., 25 W. R. 109; and see as to the effect under this section of the issue and service of a writ of sequestration, Exp. Nelson, Re Hoare, 14 Ch. D. 41.

By the Bankruptcy Act, 1883, s. 45, a garnishee order or attachment of debt will not be valid as against the trustee in bankruptcy of the judgment debtor, unless completed by the receipt of the debt before the date of the receiving order: see on this section, Robson, p. 301; Yate Lee, p. 409; Re Trehearne, Exp. Ealing Local Board, 39 W. R. 116; 60 L. J. Q. B. 50. Actual receipt is necessary; mere payment into Court is not sufficient: Butler v. Wearing, 17 Q. B. D. 182; and that a garnishee order absolute is not a final judgment" against the garnishee within sect. 4, sub-sect. 1 (g), of this Act, see Exp. Chinery, 12 Q. B. Div. 342.

66

The duties of the garnishee as to paying over the fund to the judgment creditor, where there has been an intervening adjudication in bankruptcy or registration of a deed of arrangement, are discussed in Wood v. Dunn, L. R. 2 Q. B. 73 (reversing L. R. 1 Q. B. 77), from which it appears that he will be protected if the payment has been made without notice of the adjudication, &c., or if with notice, under such circumstances that he was unable to get the order set aside, and payment was made to avoid levy of execution.

Payment into Court under a Judge's order operates as a discharge to the garnishee under sect. 65 of the C. L. P. Act, 1854 (corresponding with r. 7), and the subsequent execution of a composition deed will not affect the right of the judgment creditor to the fund in Court: Culverhouse v. Wickens, L. R. 3 C. P. 295; but if the order is not filed, the judgment creditor may have to refund to a trustee in bankruptcy of the debtor: Exp. Smith, Re Brown, 20 Q. B. Div. 321.

A person compelled by process to pay to the sheriff could not be called upon to pay a second time to the garnishor: Turnbull v. Robertson, 47 L. J. C. P. 294.

In the absence of fraud, payment by the garnishee discharges him, though the judgment is afterwards set aside: Exp. Smith, sup.

The effect of a garnishee order nisi on debts due to a co., obtained before presentation of a winding-up petition, is, upon service of the order, to bind the property in the hands of the garnishee, so as to prevent it from being handed over to the co., or, after the winding-up, to the official liquidator: Exp. Hawkins, 3 Ch. 787; Re Great Ship Co., 4 D. J. & S. 63.

If a petition to wind up has been presented before service of a garnishee order nisi, the creditors inchoate charge is defeated by the winding-up: Stanhope, &c. Collieries Co., 11 Ch. Div. 160.

Sums set apart by a co. for payment of guaranteed interest to preference stockholders of another co. may, before payment, be attached by a judgment creditor of the latter: Bouch v. Sevenoaks Rail. Co., 4 Ex. D. 133; and the proceeds of a call to provide for payment of a debt due by the co. may be attached in the hands of the liquidator to answer a judgment obtained against the creditor of the co. : Exp. Turner, 2 D. F. & J. 354.

A creditor of a testator who has, before an admon decree, obtained a garnishee order nisi will not be restrained from proceeding to issue execution: Fowler v. Roberts, 2 Giff. 226.

And see Burton v. Roberts, 29 L. J. Ex. 484, giving the judgment creditor in that case a rule absolute for payment of the debt by the exor, the garnishee.

But when the assets available for testator's debts have been removed out of the hands of the exors by an admon decree, a garnishee order nisi obtained after such decree will not be enforced against them: Stevens v. Phelips, 10 Ch. 417.

The attachment of a judgment debt overrides the general lien, or control, of an attorney over the judgment in respect of general costs due to him from the garnishee: Hough v. Edwards, 1 H. & N. 171. But the lien given to a solr by 23 & 24 V. c. 127, s. 28, upon property recovered or preserved through his instrumentality, is not prejudiced by a garnishee order attaching an amount agreed to be paid: The Jeff. Davis, L. R. 2 A. & E. 1; The Leader, Ib. 314; and see Sympson v. Prothero, 5 W. R. 814; 26 L. J. Ch. 671; Shippey v. Grey, 49 L. J. C. P. 524; 28 W. R. 877.

A charging order in favour of Plt's solr gave priority over a previous attachment of proceeds of a fi. fa. in the hands of the sheriff: Dallow v. Garrold, 14 Q. B. Div. 543.

A garnishee order which has been improperly obtained will not be enforced Leese v. Martin, 17 Eq. 224.

And for practice as to attachment of debts, see Chitty, Archbold, 927-940.

CHAPTER XXIX.

INTERPLEADER.

SECTION I.-INTERPLEADER AT THE INSTANCE OF
PRIVATE PERSON.

1. Issue directed-O. LVII. 7.

UPON the application &c., and upon reading an affidavit of — [enter evidence], and upon hearing &c., Let all further proceedings in this action against the Deft be stayed; And Let the Plt and the said C. be restrained from proceeding against the said Deft to recover the &c. [mention the property or sum in question], for which this action is brought, or any damages for or in respect of the same; And Let the said Deft retain possession of the said &c. until further order [or on or before &c. lodge in Court to the credit of &c. the said sum of £-]; And Let the following issue be tried &c. [see Forms 1 and 2, sup. p. 322) whether the said &c. for which this action is brought is the property of the Plt [add, if so, Adjourn &c.]-Liberty to apply [add Lodgment Schedule, Form No. 1].

2. Interpleader Order in Chambers in the First Instance-Issue directed without Jury-O. LVII. 8.

Directions that the Defts (stakeholders) lodge the sum of £-, being the subject-matter of the action, in Court, and for taxation and payment of their costs thereout, and for the investment of the residue"And Let, upon such lodgment in Court as aforesaid being made, all further proceedings in this action be stayed as against the Defts; And Let C. (the claimant) be restrained from commencing any proceedings against the Defts in respect of the subject-matter of this action; And Let the following question of fact between the Plt and the said C. be tried before this Court without a jury, that is to say, 'Whether the said sum of £- belongs to the Plt or the said C.'"-Question of costs reserved [add Lodgment Schedule, Form No. 1].-See Buckmaster v. Lockhart, M. R., at Chambers, 26 May, 1876, A. 1633.

In the Ch. Div., if the parties, on being served with a summons, appear, the order will be made in the first instance.

For like order at the instance of an assurance co., with directions for the trial of an issue before the Court without a jury between the Plt and the claimant, whether the Plt has any interest in moneys secured by policies, see Cutler v. Reliance, &c. Assurance Co., M. R. in Chambers, 1 Aug. 1876, A. 2244.

3. Order staying Proceedings against the Original Deft, and
substituting the Claimant-O. LVII. 7.

LET all further proceedings in this action against the Deft B. be stayed; And Let the said C. (claimant) be substituted as Deft in this action instead of the present Deft B.-Directions for bringing money into Court or for otherwise dealing with the property in question, and as to costs [see Form 2, sup.].

4. Order barring Claim against the Claimant not appearing— O. LVII. 10.

AND C. the party named in the said order dated &c., not appearing thereon to maintain or relinquish his claim as thereby directed, and having been duly served with the said orders, Let the said C. and all persons claiming from or under him be, and they are hereby, for ever barred from prosecuting the claim mentioned and referred to in the said order and the affidavit of &c. against the said Deft - his exors or admors, hereby saving nevertheless the said C.'s right or claim against the Plt. [Add consequent directions, if any.]

For the forms of the affidavit of Deft to obtain a rule or order for the claimant to appear at law; of the affidavit of the claimant in support of his claim; and of the affidavit of service of the rule where the third party does not appear, see Chit. Forms, 664-672.

And for the forms of orders in the Q. B. Div., see R. S. C., Appx. K., Forms 50-56a.

5. In Case of Adverse Claims to Ship, Freight, and Earnings—

Accounts and Inquiries-Costs.

(Defts R. & Co. and S. were co-owners of the ship; S. was also ship's master; Plt chartered the ship in Dec. 1858, to take troops to India; Defts K. &c., advanced sums to R. & Co. on security of consignment of ship to their agent, and powers of attorney from R. & Co. and S. to receive freight and earnings payable on the ship's arrival; R. & Co. stopped payment and were made bankrupts; Defts F. & Co. took possession as mortgagees for supplies and outfit for the voyage, and repairs and disbursements during the voyage, paid by them for S., who had assigned his claim and shares to them, and they alleged misrepresentation; K. &c. sued Plts at law for the freight.)

"And C., the official assignee of R. & Co., by his counsel appearing and consenting to be bound by the proceedings in this action, Let the judgment dated &c. be discharged; And the Defts by their counsel. respectively consenting that their respective claims to the freight and earnings in question in this action shall be dealt with and be subject to adjudication in the first-mentioned action, as between or among them, upon the evidence now before the Court, but without prejudice to their respective rights of appeal to the House of Lords on the merits, Declare, that before the bankruptcy of R. & Co. in the

pleadings mentioned, the freight and earnings in question became and was and were, as between them and the Deft S., subject to pay and discharge the costs of the outfit of the ship B. in the pleadings mentioned, for the voyage mentioned in the articles of charterparty of the - day of, and of the repairs during the said voyage, and of the disbursements properly incurred for the said ship during the said voyage, in and for the purposes thereof, which are in the pleadings mentioned; And that such their respective rights continued down to and at the time of the said bankruptcy, and are not as against the Deft S. varied by the powers of attorney dated &c., in the pleadings mentioned, or by any dealings between R. & Co. and the Defts K. &c.; And Let the following accounts and inquiries be taken and made, that is to say,-1. An account of the whole freight and earnings of the said ship B., for the said outward voyage, including the proceeds of the sale of goods and stores, and by whom the same have been received, and how the same have been applied; 2. An inquiry, what expenditure was incurred for outfit in respect of the said voyage, and for repairs during the said voyage, and for disbursements properly incurred in or for the said ship during the said voyage for the purposes thereof; and whether any and what part of such expenditure has been defrayed, and when, and by whom, and out of what moneys, and by whom and under what circumstances provided; 3. An inquiry, whether any and what part of the costs of the said outfit, and of the said repairs and disbursements remain unpaid, and who is liable for such part thereof (if any) as remains unpaid, and to whom; 4. An inquiry, what, if anything, is due to F. & Co. on their respective mortgage securities in the pleadings mentioned; 5. An inquiry, whether F. & Co. had notice of the claim in the pleadings mentioned of the Defts K. &c. at the date of their respective securities in the pleadings also mentioned, and if so, when they first had such notice."-Direction for taxation of Plt's costs out of fund in Court, without prejudice to the question how the same are to be ultimately borne; Other costs to be costs in the action, and question which Defts are ultimately to bear Plt's costs reserved.-Adjourn &c. [add Payment Schedule, Forms 32 and 71].-See Sec. of State, &c. for India v. Kelson, L. JJ., 6 Aug. 1861, B. 2011, on appeal.

For form of decree where the bill was dismissed as to one policy of insurance, with costs as to the trustee to whom it ought to have been paid without question; and as to a mortgagee whose claim was not disputed; the bill to be retained as to another policy, a valid claim to which had been made, but withdrawn, Plts to have the costs relating thereto up to such withdrawal, with special directions as to such costs, see Glynn v. Locke, 3 D. & War. 25. For decree in interpleader suit in Chancery by the exor of a judgment debtor making injunction for stay of execution for the judgment debt and costs perpetual, and for payment of the Plt's costs out of the fund (judgment debt) in Court, and then the costs of the Defts, or rateably, if found insufficient, and any residue to one of the Defts, see Jones v. Thomas, V.-C. S., 9 Feb. 1854, Å. 575; S. C., 2 Sm. & G. 186.

For order dismissing bill in Chancery suit with costs against one of three Defts, and directing payment out of money paid in on his behalf, and dissolving injunction as to that Deft, but continuing it as to the others, and