think just, and shall make such order for the disposal of the cause or matter as may be just (n).

"In case of an assignment, creation, or devolution of any estate or title pendente lite, the cause or matter may be continued by or against the person to or upon whom such estate or title has come or devolved" (0).

(n) Ord. XVII. r. 2. But see M. W. P. Act, 1882, s. 1 (2).

(0) Ord. XVII. r. 3. And see Campbell v. Holyland, 7 Ch. D. 166; Caton v. Hancock, 88 L. T.

Jo. 138; Guy v. Churchill, 40 Ch. D. 481; James v. Kerr, 40 Ch. D. 449; Barker v. Johnson, 60 L. T. 64; Selig v. Lyon, (1891) 1 Q. B. 513.

CHAPTER II.

PROCEDURE UNDER THE JUDICATURE ACT, 1873.

In an action by an assignee suing alone to recover upon the assignment of an interest falling within the operation of the Judicature Act, 1873, s. 25, sub-s. 6, the statement of claim must expressly allege

(1) That the assignment is absolute;

(2) That it is in writing;

(3) That written notice of such absolute assignment has been given to the person or persons by whom payment is to be made.

These are the requisites of the sub-section, and without compliance therewith, the assignee has no right of action (a).

In other words, the plaintiff assignee must show his title, and, apart from satisfying the demands of the statute, he cannot succeed under the statute.

If neither the assignment nor the statutory notice of assignment be admitted, it will be best to give the defendant notice to inspect and admit the assignee's document of title, and the copy of the notice sent to him if sent otherwise than by hand.

And strict proof of both assignment and notice of assignment may be required upon trial of the action.

The question of stamping may arise, and the assignee must see that his assignment has been duly stamped (¿), and the proof of the assignor's title to the subject-matter assigned.

(a) Secar v. Lawson, 15 Ch. D. 426; 16 Ch. D. 121; Wallis v. Smith, 51 L. J. Ch. 577; Dean v. James, 1 N. & M. 393; 1 A. & E. 809; Odgers, Pleading [1894], 63.

(b) Buck v. Robson, 3 Q. B. D. 686; Ex parte Shellard, L. R. 17 Eq. 109. And see Alpe on Stamp Duties.

It must be remembered that nothing less than notice to the actual person who is to be compelled to pay may be sufficient notice of an assignment.

Notice to the solicitors of trustees will not be sufficient, unless they are actually authorized, expressly or impliedly, as the trustees' agents to receive such notices (b). The same observation would apply to any individual other than the actual person liable to pay.

And where there are more persons than one liable to pay, similar notice should be served upon each and every one (c); and new persons succeeding to the liability to pay should have a fresh notice of the assignment, notwithstanding that due notice thereof was given to their predecessors.

Notice to trustees as regards assignment of a fund in Court will be ineffectual; the priorities of assignees thereof will be determined by priority in date of the stop-order. Consequently a second assignee of a fund in Court who has obtained a stop-order will be entitled to priority over a previous assignee (of whose assignment he had no notice) who had not himself obtained a stop-order, but had given notice to the trustees before. the date of the second assignee's stop-order (d).

Where notice of an incumbrance upon a trust fund was given to the trustee after the fund had been transferred by him into Court; such notice was held to be operative, even without a stop-order, to confer priority over a previous assignment, of which no notice had been given to the trustee, and on foot of which no stop-order had been obtained (e); and notice of assignment of a trust fund, effected by the cestui que trust, was given to

(b) Saffron Walden Bldg. Soc. v. Rayner, 14 Ch. D. 406, 410; Re Russell's Policy, L. R. 15 Eq. 26; Arden v. Arden, 29 Ch. D. 702; Tate v. Hyslop, 15 Q. B. D. 368; Re Frewen, 60 L. T. 953; English, &c. Investment Co. v. Brunton, (1892) 2 Q. B. 706.

(c) But see Meux v. Bell, 1 Ha. 73; Willes v. Greenhill, 31 L. J. Ch. 1; In re Hall, 7 L. R. Ir. 180.

(d) Mutual Life Assurance Soc. v. Langley, 26 Ch. D. 686; 51 L. T. 284; 32 W. R. 792.

(e) In re Hall, 7 L. R. Ir. 180.

only one of two co-trustees, who afterwards died during the lifetime of his co-trustee, it was held: that such notice was ineffectual to give priority over a subsequent assignment, of which notice was given to the surviving trustee (f).

Notice to an official liquidator of the assignment of a debt due from the company is sufficient, and upon the subsequent bankruptcy of the assignor the debt does not vest in his trustee in bankruptcy (g).

For the "equities" raisable by way of set-off or counterclaim by the defendant in an action for recovery upon an assignment under the statute, see references cited below (h).

INTERPLEADER UNDER THE STATUTE.

A remedy given by the sub-section in question to the person liable to pay is sometimes overlooked in dealing with the general subject of assignment of interests under the statute.

The sub-section concludes thus:

"Provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or any one 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 fit, to call upon the several persons 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

(f) In re Hall, 7 L. R. Ir.

180.

(g) In re Breech-Loading Armoury Co., Wragge's Case, L. R. 5 Eq. 284. And see, for Notice

generally, ante, Bk. II., Ch. II., and Bk. III., Ch. II.

(h) See ante, Bk. II., Ch. II. And see Annual Practice [1899], Vol. II. 411; 1 Wh. & T. Eq. Ca. 132; Lewin [1891], 781.

and in conformity with the provisions of the Acts for the relief of trustees" (h).

Before leave to interplead will be granted, it must be shown that there was a sufficient notice of an absolute assignment in writing within the sub-section (i).

A debtor against whom an action has been brought, and who has had notice of assignment of the debt, may interplead as to part only of the claim, and may dispute the residue. His application for relief may be made, either in the action under Order LVII., or by a separate proceeding under the sub-section in question. If under the latter jurisdiction, the judge making the order has no power to stay proceedings in an action already commenced against the debtor (j).

A party may interplead where one of the claimants claims damages for the detention of the subject-matter in dispute (k).

A fundholder interpleading, who acts in good faith, is entitled, although not a defendant in an action, to deduct from the fund in dispute the costs of the interpleader proceedings (1).

As above stated, relief by interpleader may be had under this sub-section before action brought; but there must have been an assignment; it is not enough that there were conflicting claims only (m).

"Relief by way of interpleader may be granted,— "Where the person seeking relief (in this order called the applicant) is under liability for any debt, money, goods, or chattels, for or in respect of which he is, or expects to be, sued by two or

(h) Judicature Act, 1873, s. 25 (6); Buck v. Robson, 3 Q. B. D. 686.

(i) In re New Hamburg and Brazilian Rail. Co. [1875], W. N. 239, 240. See, also, reference therein to Wilson on Judicature Act. (j) Reading v. London School Board, 16 Q. B. D. 686.

(k) Attenborough v. St. Katharine's Docks, 3 C. P. D. 450; Ingham v. Walker, 3 T. L. R. 448.

(1) Clench v. Dooley, 56 L. T.

122.

(m) Re Hamburg, &c. Soc., supra; Lacey v. Wieland [1876], W. N.

24.