strictly followed, have obtained an order calling upon the rival claimants to interplead, that is the costs he would have been entitled to had he applied "after declaration and before any plea." I also ordered him to pay the costs subsequently incurred by Clougher, as these were occasioned by his failure to apply to the court at the proper stage in the action. Maw was ordered to pay the costs of the interpleader issue. Something was said. about the liability of Maw to repay to Clougher the amount of the costs which Scoones was held entitled to get out of the fund in court, but disposing of the matter as I did at the close of the argument, I considered that I could not order Maw to pay any costs of this action to which he was not a party. The analogy seemed to me to be the case of an interpleader issue directed on the application of the sheriff, in which the claimant against the execution creditor, even if he fail, is never ordered to pay any costs of the original action.

Before the order was drawn up Mr. Davis spoke as to Clougher's right to a remedy over against Maw for the costs to be paid Scoones out of the fund in court, citing several English cases, and thereupon the whole question of the costs has been re-argued. On this argument the affidavits filed when Scoones obtained the order requiring Clougher and Maw to interplead, were referred to, and I reserved my judgment.

From the English authorities it would seem that a person applying for an interpleader order under 1 & 2 Wm. IV. c. 58, 5. I, which is similar to Con. Stat. Man. c. 37, s. 45, is entitled to his costs out of the fund or the produce of the subject-matter in dispute, to be repaid by the party ultimately unsuccessful. Duear v. Macintosh, 2 Dowl. 730; Cotter v. Bank of England, 2 Dowl. 728; Reeves v. Barraud, 7 Scott, 281; Regan v. Jones, 5 Jur. 607.

But in disposing of the present case the provisions of our own statute as to garnishing orders become important.

It appears that Maw obtained and served on Scoones an order attaching the money in his hands on the 2nd of October, 1882. Under Con. Stat. Man. c. 37, s. 44, he might at once have paid this money into court, to the credit of the cause in which the garnishing order was obtained, and such payment would have been to him a full discharge of the demand. Had he done so, then on an application by Maw for payment out, Clougher would

have been notified and the dispute between them would have been gone into and disposed of. But he did nothing of the kind. He not only did not pay the money into court, but when in the end of April, 1883, Clougher issued his writ, he defended the suit and made no application to the court or offer to pay in the money until after issue had been joined and notice of trial served, when, on the 4th of Oct. 1883, he obtained the summons calling upon the rival claimants to interplead. He thus kept the money in his hands for a whole year after he should have paid it into court, and put Clougher to costs by allowing this suit to be instituted, and then defending it.

After reading all the affidavits and hearing the question fully argued, I have come to the conclusion that Scoones is not entitled to any of the costs of this action, but should on the contrary pay Clougher his costs properly incurred up to that time when the order directing the interpleader issue was made. The costs of the interpleader issue and of this application to dispose of the question of costs, Maw must pay to Clougher. I do not give Scoones the costs of paying the money into court, because he improperly kept it in his hands a whole year after he should have paid it in under Maw's garnishing order. The costs of obtaining the money out of court cannot be charged against Maw, nor do I allow any of the parties any costs of this second argument in chambers.

(On appeal to the Full Court, the appeal was dismissed and the order of Taylor, J., affirmed.)

NAGENGAST v. MILLER.

(IN CHAMBERS.)

Garnishing order. Setting aside.

Held, 1. The greatest strictness is required as to the material upon which a garnishing order before judgment is obtained.

2. The omission of the words "after making all just allowances," is fatal although the action be for malicious prosecution.

3. A statement that the garnishees (an incorporated Bank) have an agency and branch establishment for the transaction of all the business of the bank, at the City of Winnipeg, is not a positive statement that the garnishees are within the jurisdiction, and is insufficient.

4. Quære, Can a garnishing order be obtained in an action for malicious prosecution?

F. McKenzie, Q. C., for plaintiff.

Chester Glass for defendant.

[7th September, 1885.]

TAYLOR, J.-The defendant applies to set aside a garnishing order herein, on the following grounds:-1. That the affidavit on which the order was obtained does not state that the plaintiff's claim is one after making all just allowances.” 2. That the affidavit does not state with sufficient particularity that the garnishees are indebted or liable to the defendant. 3. That the affidavit does not state positively that the garnishees, The Merchants Bank of Canada, are within the jurisdiction of the court.

4. That the cause of action herein is not one for which a garnishing order can be made pursuant to the statute; and 5. That the affidavit does not state that the claim herein is justly owing by the defendant to the plaintiff; and, generally, that the affidavit does not comply with the statute.

In the case of a garnishing order before judgment tying up the defendant's property and effects before the plaintiff has established the validity of his alleged claim, the greatest strictness should be required as to the material upon which the order is granted.

The statute requires the applicant for such an order to pledge his oath that the debt, claim or demand is justly due and owing to the plaintiff by the defendant, after making all just discounts.

VOL. III. M. L. R.

16

The affidavit in the present case merely says that the amount claimed by the plaintiff for a malicious arrest "is justly and truly due from the defendant to me," and all mention of its being so after making all just discounts is omitted. The first and fifth objections are therefore correctly taken, and are in my opinion fatal. A strict compliance with the statute in these respects is just as essential as it is to state that the action is pending. The omission of such a statement was held fatal in Shorey v. Baker, 1 Man. L. R. 282.

That the words "after making all just discounts," was left out advisedly, and are wholly inapplicable to a case like the present, in which the plaintiff's claim is for unliquidated damages for a malicious arrest, is no reason for saying they may be dispensed with although it does furnish a strong argument in support of the fourth objection.

That the Merchants Bank are within the jurisdiction of the court, may be inferred from a statement that the Bank has an agency and branch establishment for the transaction of all the business of the bank, at the city of Winnipeg, within the jurisdiction of the court, but there is no positive statement that it is so. The statute requires this to be positively averred, so the third objection must also prevail.

The fourth objection is one which was taken before me in Law v. Pancer, and I then thought that, in view of the fact that orders had been made in similar cases, and that one of my learned brothers had no doubt they could properly be made, I should not, sitting in chambers, hold that they could not. I still think the settlement of this point should be left to the full court, although the more I consider the subject I am the more inclined to think the objection a correct one.

On the ground of the defects in the affidavit, I set the order aside, with costs.

Mr. McKenzie's argument, that one judge cannot set aside the order of another judge, has no application in the present case at all events, for in looking at the order now moved against I find it was made by myself.

EVANS v. BALFOUR.

(IN CHAMBERS.)

Production of documents used upon examination.

A party producing documents upon his examination in the cause is bound to allow the opposite party to inspect and take copies of them.

On the examination of one of the defendants under section 134 of The Administration of Justice Act, 1885, he produced two documents which were referred to in his deposition and marked as exhibits by the special examiner. At the close of the examination these documents were not returned with the deposition to the prothonotary's office, but were taken away by the attorney, who afterwards declined to allow the plaintiff's attorney to inspect them or to take copies.

The plaintiff then obtained a summons for production of these and another document.

A. E. Wilkes for the plaintiff.

J. S. Hough for the defendant.

[9th December, 1885.]

TAYLOR, J.-The plaintiff is, in my judgment, entitled to inspect and take copies of the documents mentioned in his summons. It seems to me that even if they are such as the defendant could not be compelled to produce, he has waived his right to object now. A party examined could not, after answering a question which he was not bound to answer, at a later stage say to the opposite side, you cannot make use of my deposition. because I gave discovery which I was not bound to give. The proper course I think, which a party called upon to produce on an examination for discovery should take, when he considers he is not bound to produce, is to decline to produce, assigning the ground of his refusal. Then if the party examining insists upon the production, he can apply to the Court for an order to have the document produced on the examination, just as he would move to compel an answer to questions objected to.