CHAPTER XXX. INTERPLEADER. 1. Remedy of defendants generally. 2. Remedy of sheriff. (a) Statute. (a) Statute. (ƒ) The issue. Costs. (a) Statute.]-The statute 1 & 2 Will. 4, c. 58,(1) authorized a defendant who was sued at law for the recovery of money or goods, in which he had no interest, and which were also claimed by a third party, to relieve himself as follows: "Upon application made by or on behalf of any defendant, in any action of assumpsit, debt, detinue, or trover, such application being made after declaration and before plea, by affidavit, or otherwise, showing that such defendant does not claim any interest in the subject-matter of the suit, but that the right thereto is claimed or supposed to belong to some third party, who has sued or is expected to sue for the same, and that such defendant does not in any manner collude with such third party, but is ready to bring into court, or to pay or dispose of the subject-matter of the action in such manner as the court or any judge thereof may order or direct, it shall be lawful for the court, (1) As to interpleader in the county courts see Bloor v. Huston, 15 C. B. 266; Fraser v. Fothergill, 14 C. B. 298; Jessopp v. Crawley, 15 Q. B. 212; Cater v. Chigwell, 15 Q. B. 217; Mercer v. Stanberry, 10 June, 1856, Exch. or any judge thereof, to make rules and orders, calling upon such third party to appear, and to state the nature and particulars of his claim, and maintain or relinquish his claim, and upon such rule or order to hear the allegations as well of such third party as of the plaintiff, and in the mean time to stay the proceedings in such action, and, finally, to order such third party to make himself defendant in the same or some other action, or to proceed to trial on one or more feigned issue or issues, and also to direct which of the parties shall be plaintiff or defendant on such trial, or with the consent of the plaintiff and such third party, their counsel or attorneys, to dispose of the merits of their claims and determine the same in a summary manner, and to make such other rules and orders therein as to costs, and all other matters as may appear to be just and reasonable:" (s. 1.) The judgment of the court in any such action or issue, 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: (s. 2.) If such third party shall not appear, upon such rule or order, to maintain or relinquish his claim, being duly served therewith, or shall neglect or refuse to comply with any rule or order, to be made after appearance, it shall be lawful for the court or judge to declare such third party, and all persons claiming by, from, or under him, to be for ever barred (1) from prosecuting his claim against the original defendant, his executors or administrators (saving, nevertheless, the right or claim of such third party against the plaintiff), and thereupon to make such order between such defendant and the plaintiff as to costs and other matters as may appear just and reasonable: (s. 3.) Every order made by a judge not sitting in open court is liable to be rescinded or altered by the court: (s. 4.) But a judge, instead of himself deciding upon the application, may refer it to the court (s. 5.) All rules, orders, matters and decisions to be made and done in pursuance of this act (except only the the affidavits to be filed) may, together with the declaration in the cause, be entered of record, with a note in the margin expressing the true date of such entry, to the end that the cause may be evidence in future times, if required, and to secure and enforce the payment of costs directed by any such rule or order, and every such rule or order so entered shall have the force and effect of a judgment (except only (1) See a case where he was barred, Lucas v. London Dock Company, 4 B. & Ad. 378, as to becoming a charge on any lands, tenements, or hereditament), in case any costs shall not be paid within fifteen days after notice of the taxation and amount thereof given to the party ordered to pay the same, his agent or attorney, execution may issue for the same by fieri facias or ca. sa. adapted to the case, together with the costs of such entry and of the execution, if by fi. fa., and such writ and writs may bear teste on the day of issuing the same, whether in term or vacation, and the sheriff or other officer executing any such writ shall be entitled to the same fees, and no more, as upon any similar writ grounded upon a judgment of the court: (s. 7.) (b) In what cases.]-The following cases have been held within the statute: where the acceptor was sued on the same bill by two persons, claiming to be holders ;(1) where the defendant bought the goods from a factor whose assignee and consignor, both claimed the price;(2) where two persons were jointly sued in trover for goods and one claimed no title.(3) The following cases have been held not within the benefit of the act: trover for title deeds; (4) action for a reward advertised;(5) for dividends in a railway company ;() for a stake on an illegal race;(7) where the Crown is a party, (8) or a foreigner residing abroad ;(") where the defendant has taken an indemnity from the claimant, (10) or himself sets up a claim;(1) where the claim is substantially for unliquidated damages; (12) or where the defendant has, by his own act, incurred a personal claim in respect of the subject-matter,(13) (1) Regan v. Serle, 9 Dowl. 193. (2) Johnson v. Shaw, 4 M. & Gr. 916. (3) Gladstone v. White, 1 Hodg. 386. Smith v. Wheeler, 1 Gale, 163. Grant v. Fry, 4 Dowl. 135. (Dalton v. Midland Railway Company, 12 C. B. 458. (1) Applegarth v. Colley, 2 Dowl. N. S. 223. (8) Candy v. Maugham, 1 D. & L. 745; 7 Sc. N. R. 401. () Patorni v. Campbell, 12 M. & W. 277; Lindsey v. Barron, 6 C. B. 291. (10) Tucker v. Morris, 1 Cr. & M. 73; 1 Dowl. 639. (11) Braddoch v. Smith, 9 Bing. 84; 2 M. & Sc. 131. But if the defendant has a lien against all parties, he may be relieved if he relinquish it: Cotter v. Bank of England, 2 Dowl. 728; 3 M. & Sc. 180. (12) Walter v. Nicholson, 6 Dowl. 517. (13) Patorni v. Campbell, 12 M. & W. 277; Horton v. Earl of Devon, 4 Exch. 497; Lindsey v. Barron, 6 C. B. 291. or officiously interfered between the claimants.(1) The court has refused to interfere where the parties claim different things, as one claiming the goods and another the price;(2) and where the defendant did not know with whom he contracted.(33) (c) Application for order.]-The application is generally made to a judge at chambers; and if two actions are brought, the defendant must apply to a judge of each court.(*) There must be an affidavit of the facts properly intituled in the action, (5) and showing the stage of the cause.() The particulars which it ought to contain are specified by the statute.(") The parties may at the hearing consent that the court or judge should dispose of the claim in a summary manner.(*) If the claimant appears and persists, he should in general be supported by an affidavit ; (") and he will be made defendant in the place of the original defendant, and an issue will be directed to try the question, the subject-matter of dispute being kept in court or safe custody. The court may, in some cases, order the original defendant to find security for costs before the claimant will be substituted, (10) or to pay the sum in dispute into court. (1) The court may enlarge the rule so as to let in a party subsequently claiming; (12) but the rule will not be altered without the plaintiff having been made a party to the application. (13) (d) Issue and subsequent proceedings.]—The issue is framed by the party ordered to be the plaintiff, and the order either limits a time for the trial or it may be amended so as to do so. A new trial of the issue may be had as in other cases ;(14) (1) Belcher v. Smith, 9 Bing. 82; 2 M. & Sc. 184. (2) Slaney v. Sidney, 14 M. & W. 800. (3) Turner v. Mayor of Kendal, 2 D. & L. 197; 13 M. & W. 171. (4) Allen v. Gilby, 3 Dowl. 143. (5) Parinte v. Pennell, 7 Sc. N. R. 834. (6) Frost v. Heywood, 2 Dowl. N. S. 801. (7) Sect. 1, ante, p. 919. () 1 & 2 Will. 4, c. 51, ante, p. 290; Harrison v. Wright, 13 M. & W. 816; 2 D. & L. 695. (9) Webster v. Delafield, 18 L. J. 186, C. P.; 7 C. B. 187. (16) Deller v. Prickett, 20 L. J. 151, Q. B. (1) Allen v. Gilby, 3 Dowl. 143. (12) Kirk v. Clarke, 4 Dowl. 363. (13) Lydal v. Biddle, 5 Dowl. 244. (14) James v. Whitbread, 11 C. B. 406. but there can be no error brought on the judgment, nor any bill of exceptions. (') When judgment is signed, the party succeeding may apply to the court to have the money or property delivered to him, (2) and the court will enforce its order, though a suit in Chancery may be pending as to the subject-matter. (3) This application for an order is for a summons nisi only,() and is made to a judge of the court where the original action was brought; (5) and if the judge, who made the interpleader order, reserved the question of costs, it should be made to him. (®) (e) Costs.]-The party applying for the order is generally allowed his costs of the application out of the proceeds of the subject-matter; () and the party succeeding is left to recover such sum by action from the other claimant. (8) Where, however, the defendant was offered an indemnity for these costs, but refused it, the court refused to allow them.() Where the claimant does not appear, the court will not order the costs to be paid out of the fund, (10) nor by such claimant. (") The party succeeding on the issue is generally entitled to his costs of the issue, though he do not succeed on the whole of his claim. (12) Sometimes the costs are given to neither party.(13) The costs of the cause or issue include all the steps incidental to it; (") as of an application for an order (1) King v. Simmonds, 7 Q. B. 312; 1 Ho. L. Cas. 754; King v. Birch, 7 Q. B. 669. (2) Cooper v. Lead Smelting Company, 9 Bing. 634; 1 Dowl. 728. (3) Smith v. Clinch, 2 DowÏ, N. S. 48. (4) Stanley v. Perry, 1 Har. & W. 669. (5) Levi v. Coyle, 2 Dowl. N. S. 932. (*) Marks v. Ridgway, 1 Exch. 8. (7) Parker v. Linnett, 2 Dowl. 562; Id. 728; Reeves v. Barrant, 7 Sc. 281; but an auctioneer was refused his costs out of a sum deposited in his hands, Deller v. Prickett, 20 L. J. 151, Q. B. Pitchers v. Edney, 4 Bing. N. C. 721; 6 Sc. 582. (9) Gladstone v. White, 1 Hodg. 386; Jones v. Regan, 9 Dowl. 580. (16) Lambert v. Cooper, 5 Dowl. 547; Murdock v. Taylor, 8 Sc. 604; 6 Bing. N. C. 293. (11) Jones v. Lewis, 8 M. & W. 264; 9 Dowl. 652; Lambert v. Cooper, 5 Dowl. 547; Grazebrook v. Pickford, 10 M. & W. 279; 2 Dowl. N. S. 249. (12) James v. Whitbread, 11 C. B. 406. (1) Lewis v. Holding, 3 Sc. N. R. 191; 2 M. & Gr. 875; 9 Dowl. 652; Carr v. Edwards, 8 Sc. 337; 8 Dowl. 29; Staley v. Bedwell, 10 A. & E. 145. (4) Cusel v. Pariente, 7 M. & Gr. 527; Melville v. Smark, |