to make it quantum valeat: Larabrie v. Brown, 1 D. & J. 204. In Nelson v. Barter, 2 H. & M. 334, an interim injunction for a fortnight was granted on the affidavit of the agent of the Plts, to be extended to the hearing on Plts filing their affidavit before then. If not, Defts to be at liberty to proceed.

In the case of a co. suing by its registered public officer, he should make the affidavit, stating that, to the best of his knowledge and belief, the co. does not collude: Bignold v. Audland, 11 Sim. 23.

Where the affidavit was met by evidence charging collusion, the Plt had to give an undertaking as to damages: Manby v. Robinson, 4 Ch. 347; and Deft could at the hearing show that there was collusion, or that it was not a proper case for interpleader: Toulmin v. Reid, 14 Beav. 499.

The affidavit need not state the facts: Walbanke v. Sparks, 1 Sim. 385; nor will the claimants be allowed the costs of affidavits which go solely into the merits as between themselves: Poland v. Coall, Ir. Rep. 7 Č. L. 108.

A bill by the owner of land subject to a charge to which conflicting claims were made, but no proceedings taken, was held not to be an interpleader bill, nor to require an affidavit of no collusion: Vyryan v. V., 4 D. F. & J. 183.

On paying into Court the deposit, an auctioneer was allowed to have interpleader, and to deduct his charges without prejudice: Annesley v. Muggridge, 1 Madd. 593; but in Mitchell v. Hayne, 2 S. & S. 63, the auctioneer's interest in the deposit was held an objection to the suit. In Farebrother v. Prattent, 5 Pri. 303, the auction duty alone was deducted.

The word "charges" in r. 2 is not confined to the charges of the sheriff, but includes those of a wharfinger: De Rothschilds v. Morrison, Kekewich & Co., 24 Q. B. D. 750, C. A.

Collusion within clause (b) of the rule does not imply moral delinquency, but extends to a case where the stakeholder identifies himself in interest with, or has necessarily a preponderating interest in favour of, one of the parties: Murietta v. South American Co., 62 L. J. Q. B. 396.

Where a stakeholder takes an indemnity from one of two rival claimants, an objection on the score of collusion cannot be taken by that claimant: Thompson v. Wright, 13 Q. B. D. 632; distinguishing Tucker v. Morris, 1 Cr. & M. 73; and Belcher v. Smith, 9 Bing. 82.

By r. 3, the applicant shall not be disentitled to relief by reason only that the titles of the claimaints have not a common origin, but are adverse to and independent of one another."

Formerly interpleader did not lie in Equity, except for the same debt claimed by several persons in privity of contract or tenure as mortgagor and mortgagee, trustee and c. q. t.: Dungey v. Angove, 2 Ves. jun. 310; Story, Eq. J. § 812.

And the debt must have been the same in amount: Bignold v. Audland, 11 Sim. 23; and also the same in fact: Glyn v. Duesbury, 11 Sim. 139; Dungey v. Angove, 2 Ves. jun. 307; Cochrane v. O'Brien, 2 J. & Lat. 380.

But interpleader would lie in a case where the debtor had notice of claims and liens of various amounts on the debt: Hamilton v. Marks, 5 D. & S. 638.

An agent or tenant, being unable to dispute the title of his principal or landlord, was not entitled to interpleader on claims by his principal or by his landlord for rent, another claiming it under an adverse or paramount title: Dungey v. Angove, 2 Ves. jun. 304, 310; Cook v. E. Rosslyn, 1 Gif. 167, 170; 7 W. R. 537; Crawford v. Fisher, 1 Ha. 436; Crawshay v. Thornton, 2 My. & C. 1, 20; except where the principal or landlord had created a subsequent interest in another: Ib. 21; Clarke v. Byne, 13 Ves. 383 b; Pearson v. Cardon, 2 Russ. & M, 606; Smith v. Hammond, 6 Sim. 10; or where the agent did not know whom he ought to treat as his principal: Suart v. Welch, 4 My. &

C. 305.

But any estoppel binding the execution debtor will not bind the execution creditor, who may set up the right of a third person even though superior to his own, e. g., that hired goods in the possession of the debtor, and claimed by the letter, were in fact vested in the letter's trustee in bankruptcy: Richards v. Jenkins, 18 Q. B. D. 451, C. A.; and see Robinson v. Jenkins, 24 Q. B. D. 275, C. A., where stockbrokers, though precluded from setting up the jus tertii against their principal, were nevertheless allowed to interplead; and Rogers v. Lambert, (1891) 1 Q. B. 318, C. A., pointing out that the pro

vision in sect. 12 of the C. L. P. Act, 1860, has materially modified the principle on which Crawshay v. Thornton, sup., was decided.

PROCEDURE IN INTERPLEADER.

By r. 4, where the applicant is a Deft, application for relief may be made at any time after service of the writ of summons.

By r. 5, the applicant may take out a summons calling on the claimants to appear and state the nature and particulars of their claims, and either to maintain or relinquish them.

As to form of interpleader summons, see D. C. F. 810 et seq.; and as to service out of jurisdiction, v. sup. Chap. II. p. 13.

By r. 6, if the application is made by a Deft in an action, the Court or a Judge may stay all further proceedings in the action.

By r. 7, if the claimants appear in pursuance of the summons, the Court or a Judge may order either that any claimant be made a Deft 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 the claimants be stated and tried, and in the latter case may direct which of the claimants is to be Plt, and which Deft.

There is no jurisdiction to limit the defences of the substituted Deft to those available to the original Deft: Gerhard v. Montague & Co., 61 L. T. 564; 38 W. R. 76.

Having regard to r. 13, an issue must apparently be tried before a Judge alone unless trial by jury is expressly ordered: Hamlyn v. Betteley, 6 Q. B. Ď. 63, C. A., being in effect overruled.

For forms of order, see App. K., Nos. 50 to 56; and for forms of issue, v. sup. pp. 378-383.

Where the claimant is a receiver, he may be directed to hold the goods instead of paying the value into Court: Purkiss v. Holland, 31 S. J. 702.

By r. 8, "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 decide the same in a summary manner and on such terms as may be just.

That such summary decision cannot be appealed from even by consent, see Dodds v. Shepherd, 1 Ex. D. 75; 24 W. R. 322; Lyon v. Morris, 19 Q. B. D. 139, C. A.

As to the limit of £50 being adopted in the absence of consent, see Topham v. Greenside, &c. Co., 37 Ch. D. 294.

By r. 9, "where 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 a special case be stated for the opinion of the Court. If a special case is stated, Ö. XXXIV shall, as far as applicable, apply thereto."

As to special case under O. XXXIV, v. sup. Chap. XXI.

By r. 10, "if a claimant, having been duly served with a summons calling on him to appear and maintain, or relinquish, his claim, does not appear in pursuance of the summons, or, having appeared, neglects or refuses to comply with any order made after his appearance, the Court or a 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 claimants as between themselves."

It will be thus seen that the Court, when making the order for interpleader, may adopt any of the following courses:

1. It may make any claimant a Deft in any action commenced in respect of the subject-matter: O. LVII, 7.

2. It may direct an issue: O. LVII, 7.

3. It may dispose of the merits summarily: (a) by consent; or (b) where the amount is small: O. LVII, 8; or (c) where the question is one of law, and the facts are not in dispute: O. LVII, 9.

4. Where a claimant does not appear, or appears and refuses to comply with any order, it may make an order barring his claim: O. LVII, 10. 5. Where the question is one of law only, it may order a special case to be stated: 0. LVII, 9.

By r. 14, where in any interpleader proceeding it is necessary or expedient to make one order in several causes or matters pending in several divisions, or before different Judges of the same division, such order may be made by the Court or Judge before whom the interpleader proceeding may be taken, and shall be entitled in all such causes or matters; and any such order (subject to the right of appeal) shall be binding on the parties in all such causes or matters."

APPEALS.

By r. 11, "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, under r. 8 of this Order, 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 be, or of the C. A."

Rules 8 and 11 must be read in connection with sect. 17 of the C. L. P. Act, 1860, which enacts that "the judgment in any such action or issue as may be directed by the Court or a Judge in any interpleader proceedings, and the decision of the Court or Judge in a summary manner, shall be final and conclusive against the parties and all persons claiming by, from, or under them"; and with the provision of sect. 20 of the Appellate Jurisdiction Act, 1876, enacting that where by Act of Parliament it is provided that the decision of any Court or Judge whose jurisdiction is transferred to the High Court of Justice is to be final, an appeal shall not lie from that Court or a Judge thereof to the C. A. The rules do not give a right of appeal where there was none under the Act of 1860, and no appeal lies to the C. A., nor is there power to give leave to appeal, in the case of summary judgments and decisions falling within the operation of sect. 17, whether made under r. 8 or r. 9: Waterhouse v. Gilbert, 15 Q. B. D. 569, C. A.; Lyon v. Morris, 19 Q. B. D. 139, C. A.; Turner v. Bridgett, 9 Q. B. D. 55, C. A.; Bryant v. Reading, 17 Q. B. D. 128, C. A.; Re Tarn, (1893) 2 Ch. 284. But the word "parties," in sect. 17 of the Act of 1860, does not include the sheriff, who can therefore appeal: Smith v. Darlow, 26 Ch. D. 605, C. A.

The words "except where otherwise provided by statute," in r. 11, extend to the Jud. Acts, and after trial of an interpleader issue there is, under s. 19 of the Jud. Act, 1873, the same right of appeal from the judgment with respect to the finding of the facts or ruling of the law (as distinguished from the final disposal of the whole matter of interpleader) as in the case of any other judgment or order: Dawson v. Fox, 14 Q. B. D. 377, C. A.; but when the Judge has pronounced judgment disposing of the whole matter, there is an appeal only by leave: Robinson v. Tucker, 14 Q. B. D. 371, C. A., questioning Burstall v. Bryant, 12 Q. B. D. 103. Where an issue is tried by a jury, any motion for a new trial, or to set aside a verdict, finding, or judgment, is now to be heard and determined by the C. A., and not by a Divisional Court: Jud. Act, 1890 (53 & 54 V. c. 44), s. 1.

By r. 13, “O. XXXI and O. XXXVI shall, with the necessary modifications, apply to an interpleader issue; and the Court or a Judge who tries the issue may finally dispose of the whole matter of the interpleader proceedings, including all costs not otherwise provided for."

COSTS.

inter

By r. 15, the Court or a Judge may, in or for the purposes of any pleader proceedings, make all such orders as to costs and all other matters as may be just and reasonable.

Under the former practice, Plt, if in the right, was held entitled to his costs, and out of the fund in Court, if any: Glynn v. Locke, 3 D. & War. 11, 24; Hale v. Saloon, &c. Co., 4 Drew. 492; and see Clench v. Dooley, 56 L. T. 122; or to a lien upon it: Aldridge v. Mesner, 6 Ves. 418; Campbell v. Solomans, 1 S. & S. 462; and (inquiries being sent) to be paid out of it at once without prejudice: Sec. for India v. Kelson, L. JJ., Form 5, sup、 p. 501.

Plt could obtain his costs at once on motion, unless his right to interplead was disputed, in which case he had to set down the cause: Jones v. Gilham, G. Coop. 49.

A stakeholder litigating the claims separately lost his right to costs against the successful claimant: Laing v. Zeden, 9 Ch. 736; 17 Eq. 107.

Where the conflicting claim was withdrawn after suit brought, Plt had his costs up to that time: Glynn v. Locke, 3 D. & War. 11; sup. p. 502; Symes v. Magnay, 20 Beav. 47.

And see Mason v. Hamilton, 5 Sim. 19; and as to payment by Plt of costs needlessly incurred or increased, Crawford v. Fisher, 1 Ha. 436; E. & W. India Dock Co. v. Littledale, 7 Ha. 57; Jones v. Farrell, 1 D. & J. 208.

When an interpleader summons is taken out by a Deft in an action, he is entitled, on bringing into Court the amount claimed, to deduct his taxed costs to date, the question which of the parties are to be ultimately liable for such costs being reserved: Searle v. Matthews, 19 Q. B. D. 77, n.; and see Goodman v. Blake, 19 Q. B. D. 77; C. v. D., W. N. (83) 207; Aplin v. Cates, 30 L. J. Ch. 6.

As to giving security for costs in interpleader proceedings, v. sup. Chap. IV., pp. 28, 29.

Sect. 49 of the Jud. Act, 1873, preventing appeals as to costs only, applies to interpleader: Hartmont v. Foster, 8 Q. B. D. 82, C. A.

SECTION II.-INTERPLEADER AT THE INSTANCE OF THE SHERIFF.

1. Order for Sheriff to sell Goods seized, and pay Proceeds into Court-Issue as to Claims.

LET the said sheriff proceed to sell the goods and chattels seized by him under the writ of fi. fa. issued in this action, and lodge the net proceeds of the sale after deducting the expenses thereof [If so, and the possession money from the day of in Court as directed in the schedule hereto; And Let the following issue be tried &c. [see Forms 1 and 2, sup. p. 369], that is to say, whether at the time of the seizure by the sheriff the goods &c. were the property of the said C. (the claimant) or of the said D. (the execution creditor); And Let no action be brought against the said sheriff for the seizure of the said goods [If so, Adjourn &c.]-Liberty to apply [add Lodgment Schedule, Form No. 1].

2. Sheriff to withdraw on Claimant paying into Court, and payment of Possession Money-In default, Sheriff to sell-Issue directed. LET W., on or before &c., lodge in Court, as directed in the schedule hereto, Three hundred pounds; And Let, upon lodgment of the sum of Three hundred pounds in Court on or before &c., and upon payment to the said sheriff of the possession money from &c., the said sheriff withdraw from the possession of the goods seized by him under the writ of fi. fa. herein; And Let, unless such first-mentioned payment be made within the time aforesaid, the said sheriff proceed to sell the

said goods, and within ten days from the receipt thereof pay the proceeds of the sale, after deducting the expenses thereof and the pos session money, into Court as directed in the schedule hereto, subject to further order; And Let the parties proceed to the trial of an issue in this Court whether at the time of the seizure by the sheriff the goods seized were the property of W. as against the said co., and W. is forthwith to furnish to the sheriff's agents a copy of the inventory exhibited to her affidavit; And Let the issue be prepared and delivered by the Plt therein within twenty-two days from this date, and be returned by the Deft therein within four days after delivery thereof, and be tried at Leeds in the county of York; And the question of costs and all further questions are reserved to be dealt with at the trial of the said issue, and no action is to be brought against the said sheriff for the seizure of the said goods [add Lodgment Schedule, Form 1].-See Re The Newmarket Collieries, Brickworks, and Pottery Co., Ld., Pearson, J., at Chambers, 26 March, 1885, B. 927.

3. Sheriff to remain in Possession on default of Payment or giving

Security.

or upon

LET upon payment of the sum of £ into Court &c., the said C. giving security to be approved by the Judge, the said sheriff withdraw &c. [Form 2, sup.]; And Let in the meantime, and until such payment shall be made, or security given, the said sheriff continue in possession of the said goods and chattels; And Let the said C. (claimant) pay possession money for the time he shall so continue, unless the said C. (claimant) shall desire the said goods and chattels to be sold by the sheriff, in which case the sheriff is to sell the same, and lodge the proceeds of the sale, after deducting the expenses thereof and the possession money from this date, in Court &c., to abide further order herein; Let the following issue &c. [Form 2, sup. p. 369; Add Lodgment Schedule, Form 1].

4. Summary Order by Consent for Sheriff to withdraw-0. LVII, 8.

AND C., the claimant, and E., the execution creditor, having, by their solrs, consented that the claim made by the said C. should be disposed of on the merits, and determined in a summary manner, and the Judge being of opinion that the goods in question were at the time of their seizure by the sheriff the property of the said C.; Let the sheriff withdraw from the possession of the said goods; And Let no action be brought against the sheriff; And Let the said E. pay the said C. his costs, to be taxed &c.

5. Sheriff to proceed to sell, and to raise and pay Claim and

Expenses-0. LVII, 12.

LET the said sheriff proceed to sell so much of the goods and chattels seized under the writ of fi. fa., issued in this action as will