S. 11. Proceedings in lieu of feigned issue. 14 Vic. No. 9, s. 9. Second Special case on direct such admissions to be made by them or either of them for 12. (1) In every case where any Court of law or equity desires to have any question of fact decided by the jury, such Court may direct a writ of summons to be sued out, by such person or persons as the Court thinks ought to be plaintiff or plaintiffs against such person or persons as the Court thinks ought to be defendant or defendants therein, in the form set forth in the Second Schedule to this Act, with such alterations or additions as such Court may think proper. (2) Thereupon all the proceedings shall go and be brought to a close in the same manner as proceedings under a feigned issue. See In re Jeremiah Rundle, (1894) 11 W.N. 59; and Ex parte Saunders, (1900) 16 W.N. 167. 13. (1) In all cases where by any law the Supreme Court or a Judge thereof is empowered to direct or authorise the trial of a feigned issue for the determination of any question of fact, such Court or Judge may direct or allow the statement of a special case for the opinion of the Court on any matter of law. (2) On the decision of any such case the Court may make such order or orders in the matter, and give such adjudication, or cause such judgment to be entered therein as the Court thinks fit. See also C.L.P. Act, s. 55, (ante). 14. No Judge of the Supreme Court, justice of the peace, or Other inhabitant of the city of Sydney, or of any incorporated town or city, discharging any judicial or civil functions whatever shall be disabled from acting in the due discharge and execution of his respective duties by reason of his being a member of the corporation interested; and any such Judge, notwithstanding that he is a member of such corporation, may sit, determine, or otherwise adjudicate on the matters brought before him connected with the said corporation as in any ordinary case of the like nature; and any person named as juror or assessor may act as such juror or assessor in any such proceeding; and any justice of the peace of any incorporated town may act as justice in like manner as if he had not been directly or indirectly interested in the concerns of such corporation. See Lord v. Mayor of Sydney, (1870) 9 S.C.R. 94 ; Ex parte O'Connor, (1869) 8 S.C.R. 142. 13 Vic. No. 34 An Act for the further amendment of the An Act to remove doubts in respect to the So much of the Act The unrepealed The unrepealed Sections 21, 28, 29, An Act to make further provision for the The whole. 14 Vic. No. 9 An Act to amend the law concerning games 29 Vic. No. 18 The unrepealed An Act to make further provision for the The whole. SECOND SCHEDULE. In the Supreme Court of New South Wales [or any inferior Court]. New South Wales to wit (or such other venue as may be directed). WHEREAS A.B. affirms and C.D. denies [here state fully the fact or facts in issue], and the Judges of the Supreme Court of New South Wales [or such other Court, &c.], are desirous of ascertaining the truth by the verdict of a jury, and both parties pray that the same may be inquired of by the country. Sch. 1. Section 12. 8. 1. INTERPLEADER ACT 1901. TABLE Showing how the sections of Acts consolidated have been dealt with. Short title and division. Repeal Schedule ACT NO. VII., 1901. An Act to consolidate the Statutes relating to Interpleader in the Supreme Court. [Assented to, 3rd October, 1901.] BE E it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows: PART I. 1. This Act may be cited as the "Interpleader Act, 1901," and is ivided into Parts as follows PART I.-PRELIMINARY-ss. 1-3. PART II.-APPLICATIONS BY DEFENDANTS-SS. 4-7. PART III.-APPLICATIONS BY SHERIFF AND OTHER OFFICERS -s. 8. PART IV.-SUPPLEMENTARY—ss. 9-11. 2. The Acts mentioned in the Schedule to this Act are, to the extent therein expressed, hereby repealed. PART II. APPLICATIONS BY DEFENDANTS. S. 4. proceedings 4. Upon application made by or on the behalf of any defen- Interpleader dant, sued in the Court in any action of assumpsit, debt, detinue, or upon applicatrover, such application being made after declaration and before defendant. plea, by affidavit or otherwise showing (a) that such defendant does not claim any interest in the (b) that the right thereto is claimed or supposed to belong to (c) that such defendant does not in any manner collude with (d) that such defendant is ready to bring into Court or to pay the Court or a Judge may (i) by rule or order call upon such third party to appear (ii) upon such rule or order hear the allegations as well of (iii) in the meantime stay the proceedings in such action; (iv) order such third party to make himself defendant in The usual practice is to take out a chamber summons signed by a Judge, supported by a proper affidavit (v. Affidavit, infra); (form of summons: Chitty's Forms, 819) calling on the plaintiff and the claimant to appear in Chambers, and show cause why the claimant should not appear and state his claim, &c. : see Chitty's Forms, 819. In any action. But the Crown cannot be made to interplead not being named in the Statute: Candy v. Maughan, 1 D. & L. 745; where, however, the Crown as execution creditor assented to the order and the issue was found in favour of the claimant, the Crown was held to have submitted to the ordinary consequences, and was made to pay costs: Minister for Lands v. Nestrom, (1900) 17 W.N. 68. Whether a foreigner beyond the jurisdiction can be required to interplead, quære: Patorni v. Campbell, 12 M. & W. 277; see Belmonte v. Aynard, 4 C.P.D. 221, 352; Credits Gerundeuse v. Van Weede, 12 Q.B.D. 171; Re Busfield, 32 C.D. 123. Where there were two actions in different Courts (in England) application had to be made in each: Allen v. Gilby, 3 Dowl. 143. After declaration and before plea.-The application may apparently be made after further time to plead has been obtained : Chitty's Archbold, 1396. Affidavit.-The affidavit must be made by the defendant or some other person who knows the facts; and must state as in (a) (b) (c) and (d), supra, and any other material facts: see form, Chitty's Forms, 816. tion of 1 & 2 Will. IV, c. 58, s. 1. S. 4. Interest. As to (a) see Braddick v. Smith, 9 Bing. 84; Slaney v. Sydney, 14 Lien.-A lien claimed by the defendant on the subject matter may exclude the remedy: Braddick v. Smith, 9 Bing. 84; but see Cotter v. Bank of England, 2 Dowl. 728; Best v. Hayes, 32 L. J. Ex. 129; 1 H. & C. 718. Collusion. As to (c) the affidavit must deny collusion with either plaintiff or claimant : Belcher v. Smith, 9 Bing. 82; Tucker v. Morris, 1 Cr. & M. 73 ; 1 Dowl. 639; but the claimant who is a party to the collusion cannot take the point: Thompson v. Wright, 13 Q.B.D. 632. Defendant taking an indemnity from one side cannot claim relief: Tucker v. Morris, supra. Applicant in possession.-As to (d) in order that the applicant may be in a position to bring the subject matter into Court, it must appear that he is in possession of it, and thus able to obey any order of the Court that may be made about it: Inland v. Buskell, 5 Dowl. 147; Darcy v. Fielder, (1888) 4 W.N. 155, seems to be a decision on this point. Whether a defendant can interplead as to part, quære: Reading v. School Board for London, 16 Q.B.D. 686. Third party to state particulars of claim.—It has been held in Sheriff's interpleader that the claimant must verify his claim on affidavit produced in Court: Chitty's Archbold, 1407; Younger v. Czarlinski, (1895) 12 W.N. 30; though Foster, J., made an order subject to the filing of an affidavit: Jeannerett v. Mills, (1891) 7 W.N. 92. It seems advisable always to file an affidavit; see Chitty (supra) and Powell v. Lock, 3 A. & E. 315. The claimant may be restricted on the trial of the issue to his claim as disclosed on the affidavit: Thompson v. De Lissa, (1881) 2 N.S.W.R. 165. If the claimant does not appear his claim may be barred : s. 6, infra, and notes. The order.-Assuming that the defendant has made a prima facie case by affi davit as above mentioned, yet the order will be made only under certain circumstances. The same question must be raisable on the interpleader issue as was in dispute between the original parties: Baker v. Bank of Australasia, 1 C.B. N.S. 615 ; 26 L. J.C.P. 93 ; but see Lucas v. London Dock Co., 4 B. & Ad. 378; Tanner v. European Bank, L.R. 1 Ex. 261. If it appear upon the application that the applicant is under a special obligation towards either plaintiff or claimant in respect of the subject matter it was at one time held that the application must be refused, following the Equity Practice: Craw shay v. Thornton, 2 Myl. & Cr. 1; Farr v. Ward, 2 M. & W. 844; James v. Pritchard, 7 M. & W. 216 ; Turner v. Mayor of Kendall, 13 M. & W. 171 ; Lindsay v. Barron, 6 C.B. 291; Horton v. Earl of Devon, 4 Ex. 497 ; Oriental Bank v. Nicholson, 5 W.R. 587. But in England the rule was latterly somewhat relaxed even before the English C.L.P. Act 1860 Johnson v. Shaw, 4 M. & G., 916; 12 L. J.C.P. 112; Crellin v. Leland, 6 Jur. 733. Under that Act the rule had no application: Meynell v. Angell, 32 L.J.Q.B. 14; Best v. Hayes, 1 H. & C. 718; 32 L.J. Ex. 129; Tanner v. European Bank, L.R. 1 Ex. 261. Although that Act has never been adopted here, yet in McGuinness v. Bank of New South Wales, (1880) 1 N.S.W.R. 97, Windeyer, J., made an order following the English cases last cited, and the Court confirmed that order on appeal, ibid. The question, however, came before the Full Court on appeal in Lazarus v. Harris, (1888) 9 N.S.W.R. 148; 4 W.N. 179; when the earlier cases were followed on the express ground that the provisions of the English C.L.P. Act, 1860, have not been adopted or enacted here; and so in McLaughlin v. Pitt, (1890) 6 W.N. 109, an order was refused on the same ground. Yet it is to be observed that in Roberts v. Bell, 7 E. & B. 323, a case before the Act of 1860, an order was made although the defendants were bailees of the subject matter in dispute from the claimant ; and in Best v. Hayes (ubi sup.) though decided after the Act of 1860, yet the Judges of the Court of Appeal referred to the practice of the Court as existing before that Act, and as having before the Act departed from the old Equity rule; and did not rely on the Act for their decision; and see Tanner v. European Bank, L.R. 1 Ex. 261. These cases were cited in Nolan v. London Chartered Bank, (1890) 6 W.N. 127, where an order was made; and see Dawson v. Mutual Assurance Society of Victoria, (1892) 9 W.N. 5; and in Bray & another v. Bank of Australasia, (1896) 13 W.N. 32, Cohen, J., followed Nolan v. London Chartered Bank (supra). But in Calvert v. Duff, (1903) 20 W.N. 15, where an agent who had effected a private sale of land, was sued by the purchaser for the deposit, Pring, J., refused to make an interpleader order on the ground that the defendant was merely an agent for the vendor (the claimant). In Ison v. Stewart, (1901) 18 W.N. 244, the defendant had borrowed the money in question, and was sued by plaintiff; the executors of plaintiff's deceased husband also claimed the money; order was refused. |