fO) CORNELL UNIVERSrrY LIBRARY 3 1924 067 605 448 Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SChOOL By his Wife- and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS CJortifll few ^ri|0nl SItbraty The original of tliis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924067605448 INTERPLEADEE, ATTACHMENT OF DEBTS. INTEEPLEADEK ATTACHMENT OF DEBTS HIGH COURT OF JUSTICE, AND IN THE COUNTY COURTS, TOOETHBR WITH iForms of tijc Summonses, ©rlrers, ^EtiaWts, $cc., uselr tfjmin. -^>, By MICHAEL ^BABfi '^4>: > OF THE imfER TEMPLE, BABBISTEB-AT-LAW. > LONDON : WILLIAM MAXWELL & SON, 29, FLEET STREET, E.C., Jafe %ttss\sSkt% anl> §aUi»^trs. MEREDITH, BAY, & LITTLER, MANCHESTER; HODGES, FIGGIS, & CO., AND E. PONSONBY, DUBLIN; C. F. MAXWELL, MELBOURNE AND SYDNEY. 1881. LONDOS" : BRADBURY, AGNEW, & CO.. PRINTERS, WHITEFRIARS. PKEFACE. There is no such connection between the two subjects dealt witb in the following pages, as renders it necessary to combine them in the same volume. The proceedings whereby a person harassed by conflicting claims is enabled to make the rival claimants fight the matter out between themselvesj are quite distinct from the proceedings where- by a judgment creditor is enabled to obtain payment of his judgment debt from persons indebted to his judgment debtor. Nevertheless practical, if not logical, considerations may afford a justification for treating the two subjects together. Both proceedings are in constant, and, in the complications of civilised life, ever increasing use ; and they admit of being completely dealt with in the same volume without necessitating the production of any work save one of a moderate compass and unpretentious character. The process of foreign attachment in the Mayor's Court of London is referred to, but not dealt with, in vi PREFACE. this book, chiefly for the reason that it would he alien to the object and design of the work to include its consideration, while the subject is admirably dealt with in well-known treatises. It may be added that it is difficidt to state precisely this position of foreign attach- ment since the recent decision of the Court of Appeal in the case of The London Joint Stock Bank v. Mayor of London (L. E. 5 C. P. D. 494.) 6, King's Bench "Walk, Temple, January, 1880. ADDENDA. Since tlie completion of this work, a vestige of authority has appeared on the question discussed in the note on pp. 4 and 5, viz., whether the old Chancery jurisdiction in Interpleader still exists ? It is the more important for the writer to call attention to it, hecause it goes to shew that an interpleader action can be commenced in Chancery. The case is one of Hamlyn v. Betteley (L. R. 6 Q. B. D. 63), and the point decided in it was that when an interpleader issue is directed to he tried in the ordinary form, it must he tried hy judge and jury, and that the plaintiff in the issue cannot procure that it shall he tried by a judge alone, by giving notice to that effect under Order XXXVI., Eule 3 of the E. S. C, 1875. But in the course of his judgment Lord Selbome, L.C., said, " It is not necessary to decide whether an action of interpleader — ^which has been substitiited for the hiU of interpleader — ^might be tried without a jury, or whether a judge might have power under Order XXXVI., Eule 26, to direct that mode of trial. In the present case, the interpleader proceeding was strictly statutory, being a proceeding under the Interpleader Act (1 & 2 WiU. IV. c. 68)." These remarks are of course " obiter dicta ; " but their weight is obvious, especially as the construction of Order I., Rule 2 was greatly discussed in the case. Page 99, last line but one, add : — In Hilla v. Benny (L. E. 5 Ex. Div. 313, C. A.), where a claimant to goods seized by the bailiff gave notice of his claim, and then commenced an action against the County Court officers, and the purchasers of the goods from them, it was held that as on the hearing of the interpleader summons the County Court judge would have power to go into the case as against the officers, the action against them should be stayed, but that as, on the construction of § 31 of the Act of 1831, he could not go into the case as against the purchasers, the actions against them could not be stayed. TABLE OF CONTENTS. PAQE Table of Casss xi INTERPLEADER. lUTBODUCTOBY 1 CHAPTBE I. "Who mat intbeplbad 6 "Wlen a Stakeholder may interplead 6 When a Sheriff may interplead 23 CHAPTER n. The Pbaoticb in Interpleadbk 87 When Proceedings commenced by Stakeholder . . 37 When Proceedings commenced hy Sheriff . . . . ?3 CHAPTEE ni. Intbepleadbk in the Cotjntt Coukts , . . .92 Statutes dealing with Inteepleadee 105 APPENDIX. Appendix A. — ^Forms in Stakeholder's Interpleader . . 117 Appendix B. — Forms in Sheriff's Interpleader . , . . 125 Appendix C. — Forms in County Court Interpleader . . 132 TABLE OF CONTENTS. ATTACHMENT OF DEBTS. PAGE Inteoductory 147 CHAPTEE I. Attachment in the High Cottrt 148 CHAPTEE II. Attachment in the County Cotjkts 182 APPENDIX. Appendix A. — Forms of Attachment Proceedings in the High Court 193 Appendix B. — Forms of Attachment Proceedings in the County Courts 200 INDEX to INTEEPLEADER 207 to attachment of debts 215 TABLE OF CASES. A. PAOE PAGE Benazech v. Bessett . . . 66 Abbott v. Eichards . . 82 Bentley v. Hook . 26,36 Adam v. Gillem . . . 161 Best V. Hayes . 12, 19 Alemore v. Adeane . . .34 Best V. Pembroke . 66, 152 Allen V. Evans . . . . 27 Beswick v. Boffey . 102 Allen V. Gibbon ... 26 Beswiok v. Thomas. . 86, 89 Allen V. Gilbey . . . 42 Birohall v. Pugin . . 179 Anderson v. Calloway . . 25 Bird V. Crabb . 63 Angell V. Baddeley . . . 84 Bishop V. Hinxman . 27, 86 Anon 169 Blackmore v. Yates . . . 62 Applegarth v. CoUey . . . 13 Bland v. Delano . 64, 86 Armitage v. Foster . . .88 Bloore v. Houston . . 103 Attenborcugh v. St. Katharine's Bouch V. Sevenoaks, &c. Eail- Dock Company, 12, 19, 20, 21 way Company . . 161 22, 67, 69 Bowen v. Bramidge . 73, 89 Bowlder v. Smith . . 76 Boyse v. Simpson . . 164 B. Brackenbury v. Laurie . . 82 Braddiok v. Smith . . 11 Saker v. Bank of Australasia . 14 Bragg V. Hopkins . . 88 Bank of Ireland v. Perry . . 23 Braine v. Hunt . 25, 85, 86 Barker v. Dynes . 26, 81, 85, 87 Bryant v. Ikey . . 85, 86 Barker r. Phipson . . .34 Buck, re . 85 Barnes v. Bank of England 16, 73 Burton v. Eoberts _. . 160 Barnes v. Headley . . .63 Bateman v. Famsworth . . 28 Baynard v. Simmons . . 153 C. Beale v. Overton . . . 33 Belcher v. Patten ... 54 Candy v. Maughan . . 17 Belcher v. Smith . . 13, 16 Came v. Brice . . . 52 Belmonte v. Aynard . . 22, 68 Carpenter v. Pearce . 81, 83 TABLE OF CASES. 28, Carr v. Edwards Cater v. Chigwell . Cetti V. Baitlett Chapman u Callis . Chase v. Goble . Churchward v. Coleman . Claridge v. Collins Clarke v. Chetwode Clarke v. Lord Clifton V. Davis . Cohen v. Hale Collis v. Lee Colonial Bank v. Warden . Commissioner of Donations Archbold Cook V. Allen . . 32, Coole u Braham Cooper V. Asprey . Cooper V. Brayne Cooper V. Lead Smelting Co. Coppel 1). Smith Cotter V. Bank of England . Cowans, in re Coz V. Balne , Cox V. Fenn . Crawshay v. Thornton Crellin v. Leland . Cremetti v. Crom Crossley v. Ebers . Crump D. Day . Cnlverhouse v. Wiokens . Cummings v, Ince Cusel V. Pariente . D. Dahhs V. Humphries Darby v. Waterlow PAOB . 71 . 93 . 65 . 159 . 53 . 101 . 29 . 88 77,88 71,72 . 159 . 15 . 17 V. . 163 35, 76 . 61 . 85 . 173 . 64 . 169 12, 69 . 160 31, 36 . 86 4,17 . 18 . 153 . 30 . 35 . 181 . 55 . 70 87, 89 . 81 Dalton V. Midland Railway Company. . . .14 Daniel v. M'Carthy . ' . .159 Day V. Carr .... 24 Day«. Walduck . . . 28 Death v. Harrison , . 93, 99 Deller v. Prickett . . . 67 Dent V. Dent . . . .161 Devereux v. John . . . 32 De Winton v. Mayor, &c., of Brecon . . . . 167 Dickenson v. Eyre . . .65 Dingleya. Bobinson . . . 164 Dixon V. Ensell ... 34 Dixon V. Neath & Brecon Rail- way Company . . .157 Dixon V. Yates . . . . 71 Dobbins v. Green . , .75 Doble V. Cummins . . 44, 76 Dodds V. Shepherd . . 46 Dolphin V. Layton . 162, 165, 191 Donninger v. Hinxman . . 76 Dresser v, Johns . . .163 Duddin v. Long . . . 31 Duear v. Mcintosh . . .69 E. Eade v. Winser Edwards v. English . Edwards v. Matthews Eisdell V. Coningham . Elliott V. Sparrow . Emanuel v. Bridger . Emmott V. Marchant Engelbach v. fTixon . Evans v. Wright . Eveleigh v. Salisbury , . 176 . . 55 . 60 . . 178 . 59 . . 172 . 61 . . 22 . 20 44, 76, 86 TABLE OF CASES. F. PAGE Farr v. Waii .... 14 Fenwick v, Layoock . . . 29 Field V. Cope .... 85 Field V. G. K Elwy. Company 8 Ford V. Baynton . . . 26, 29 Foster v. Pritchard . . 93 Fowler v. Roberts . . . 160 Frankland, re . . .152 Frost V. Heywood . . 43, 67 G. Gadsden v. Barrow . . , 55 Gaskell v. Sefton . . .87 Gayii. Pitman . . . . 16 Gayton v. Espin . . .62 Grethin v. "Wilks . . . 76 Gilmour v, Simpson . . 164 Gladstone v. WMte . . 13, 70 Glazebrook v. Kckford . . 71 Glazier t>. Coope . . . 77 Grants. Fry . . . .15 Green v. Brown . . . . 24 Green v. Bogers . . .54 Green v. Stevens . . . 56 Greensill, re . . . . 164 Gugen V. Sampson . . 61, 63 Halahan, re . . . . 155 Hall V. Pritohett . . 164, 191 Hamburgh Company . . . 169 Hammond v. Nairn . . 86 Hargrave v. Hargrave . . 50 Harrison t). Forster . . 30 Harrison V. Payne PAOE . . 10 Harrison V. Wright , . 46 Hartley!) . Shemwell 66, 152, 155 Harwood ». Betham . . 13 Haythom v. Bush . . 28 Hirsoh v. Coates . . 163 Hollier v. Laurie . . . 82 Holmes v Tutton . . 171 Holmes v . Mentze . , 27,86 Holt V. Frost . . . 31 Holton V. Guntrip . 24, 85 Hood V. Bradbury . . 73 Hook V. Ind, Coope, &Co. . 83 Homidge V. Cooper . . 62 Horsley i . Cox , . 147 Horton v. Earl of Devon . . 18 Hough V. Edwards . . . 178 I. Ibbottson V. Chandler . . 77 Inland v. Bushell . . .25 Innes v. East India Company . 163 Isaac V. SpUsbury . . 27, 36 J. James v. Pritchard . . 17 James v. "Whitbread . 63 JauraJde v. Parker . . . 155 Jeff Davis, re . . 179 Jenkins v. Morris . . 91 Jessop V. Crawley . . 93 Johnson v. Diamond . 165, 181 Johnson v. Shaw . . 18 Jones V. Brown . . . 165 TABLE OF GASES. PAOE Jones V. Hough . 90 Jones V. Jenner . 154, 155 Jones V. Lewis . 89 Jones V. Began . . . 70 Jones V. Thompson . 159, 162 Jones V. 'Williams . . 93 Joselyne, ex parte, re Watt, 159, 172 Kaupt V. Kaupt . . . . 175 Kebell i>. Philpotts . . 59 Zennett ti. Westminster Im- proTement Uommissioners 154 166 Kent V. Tomkinson . . 181 Ximberley v. Hickman , . 60 King V. Birch ... 65 Kirk V. Almond . . . 25 Kirk V. Clarke ... 43 Krehl v. Burrell . . . 90 Lamhert v. Cooper . Lambert v. Townaend Lambirth v. Harrington Lashman v. Claringbold Laurance v. Matthews Leav.Bossi Leader, re The Levi ti. Coyle Levy V. Champneys Levy V. Lovell . Lewis V. Holding . Lewis V. Jones . Lindsay v. Barron . 70, 89 43, 75 . 64 . 32 . 8 . 24 . 179 45, 65 . 30 . 173 71, 72 . 83 18, 22 FAOB Linnett ti. Chaffers . . 54 Lott V. Melville . . . . 53 Lowe V. Blakemore . . 172 Lowe V. Lowe . . . . 90 Luard v. Butcher . . .49 Lucas V. London Dock Compy. 21 Luckin v. Simpson . . . 50 Lydall v. Biddle ... 59 M. Macdonald v. Hollister . .164 Mason v. Muggeridge . . 157 McAndrew v. Barber . 48, 64, 90 Marks ii. Eidgway . . 49 Mason v. Wirrall Highway Board . . 191 Matthews v. Sims . . 65 MTee, ex parte . 101 MeUin v. Dumont . . 67 IJelviUe v. Smack . . 70, 88 Mercer v. Stanbury . . 93 Meredith v. Rogers . . 73 Meynell v. AngeU . . 19 Miller v. Mynn . . . 159 Mitchell V. Hayne . . 12 Mitchell V. Lee . . . 159 Morewood v. Wilks . 52 Morland v. Chitty . 85, 86, 87 Murdoch v. Taylor . . . 70 Murray v. Simpson . . 161 Mutton V. Young . . 88, 36 N. Nash V. Pease Nathan v. Giles . . 160 169, 174 TABLE OF GASES. XV New Hamburg Railway Com- pany, Inre , . .8 Newman,. re 163 Newman v. Rook . . 173, 174 0. O'Neill V. Cunningham . . 161 Oram v. Sheldon . . .65 Ostler V. Brown . . . . 30 Parientec. Pennell. . . 45 Parker v. Linnett . . . 7, 69 Patomi V. Campbell . 18, 22 Payne, ex parte, in re Cross . 56 Peaiqe v. Watkius . . .79 Perkins v. Burton . . . 76 Phillips V. Spry . . 43, 75 Pickering v. Ilfracombe El. Co. 103 Pine V. Kinner . . . 165 Pitchers «. Edney . . . 69 Pooley V. Goodwin . . 52, 61 Potter V. Cotton . . . 90 Powell V. Lock . . 45, 77 Price, re 162 Price V. Plummer . . 61, .58 Protector Endowment Com- pany V. Whitham . . 157 Putney v. Tiing . . .22 Q. Queen v. Richards , . . 100 Queen v. Staplyton . .100 R. Reeves v. Barraud . PAGE 69 Regan v. Serle . . . . 10 Republic of Costa Rica v Strousberg 157 Rex D. Sheriff of Herts 78 Richards v. James . 59 Richards v. Johnson . . . 57 Richardson v. Elmit 165 Richardson v. Greaves . . 175 Richardson v. Wright 101 Richter v. Tiaxton . . , 173 Ridgway v. Fisher . 32 Ridgway v. Jones . . . 67 Roach V. Wright . 22, 35, 36 Roberts v. Bell .... 10 Robinson v. Nesbitt 163 Rooda V. Gun & Shot, &c.. Company . . . . 71 Rogers v. Kenny . 54 Rusden v. Pope . . . . 22 Salmon v. James . , , 28 Sampson v. Seaton Railway Company . 175 Sanson v. Sanson . 161 Saunders v. Perrin 68 Scales V. Sargeson . . 87 89 Schroeder v. Hanrott ■ 58 Scott 1). Lewis 25 Seynjour v. Corporation of Brecon 162, 170, 174 Sharpe v. Redman 10 Shaw v. Shaw 162 Sheriff of Oxon, re . 27 , 86 Shingler v. Holt . 51, 57, 63 XVI TABLE OF CASES. Shortridge ■». Young 46 Skipper 1). Lane . . . 33 Slaney v. Sidney . 11 Smith V. Clinch . . . 66 Smith V. Saunders . 28 Smith V. Wheeler . . . 10 Smith V. Yorko 61 Sparks v. Yonng . . . 158 Staley ii. BedT?ell . 71 Standard Discount Company v. Lagrange . . 48 Stanhope Silkstone Colliery, In re 172 Stanley v. Percy . . 5C », 59 Sterens v. Philips . 155, 167 Sturges V. Claude . 22 Summers, Sx parte . . . 104 Summers v. Morphew . iSs Swain v. Spencer . ... 88 Sympson v. Prothero 178 Tanner, Ex parte Tanner v. European Bank Tapp V. Jones . Tarleton v. Dummelow Thompson o. Shed'don Tilbury v. Brown TiUeard v. Cave Tinkler v. Hilder Toulmin v. Edwards Tros V. Michell Tucker v. Morriss . TumbuU V. Robertson Turner, Ex parte . . 100 . 20 158, 175 . 27 , 86 . 171 , 86 . 93 , 34 169 13 180 , 160 rAOE Turner v. Jones . . . 180 Turner v. Mayor, &c., of Keniial ... 16, 18 Underden v. Burgess . . 87 ■w.„ TVadsvorth v. Queen of Spain 169 Walker v. Kerr . . .43, 77 Walker v. Olding . . .83 Walters v. Nicholson . . 9 Webster v. DelaEeld . 45, 77 Webster i;. Webster . . . 169 West V. Botherham . 86, 87 Westobyi). Day . . . 169 White V. Watts . . . 59 Whitehead v. Procter . 101, 103 Wicks V. Woods . . . 60 Willoock V. Terrell . . . 161 Williams v. Grey . . .62 Williams v. Crossling . . 67 Williams v. Beeves . . 161 Wills V, Hopkins . . . 89 Wilson V. Dundas . 158, 176 Winter v. Bartholomew . .81 Wintle V. Williams . 175, 181 Wise V. Birkenshaw . 163, 174 Withers v. Parker . . .63 Witt V. Parker . . . . 63 Wood V. Dunn . . . Jgo Woodford v. Bosanquet . . 51 Woollen V. Wright . . 83 Wright V. Freeman . . . 10 INTERPLEADER. INTEODUCTOKY. To a person in the possession of property admittedly not his OTTO, and whose only anxiety was to hand it over to the rightful owner, out of the two or more claimants who were harassing him in respect of it, the Common La\v and the Common Law Courts, until the year 1831, when the Interpleader Act was passed, gave very little assistance. Some very slight assistance indeed these Courts did Interplea- give to a person so situated. Thus, if two persons deratCom- deposited deeds with a third .person to be re-delivered by before such depositary according to the terms of an agreement, ■'^^^■^• and one of them then brought an section oi detinue against the depositary, the latter could give notice of suit to the other depositor and compel him to appear and become defendant in the action in his stead. This proceeding was called garnishment, and the substituted defendant was called a garnishee. Again, if under the circumstances above mentioned, ioth the depositors brought actions of detinue against the depositary, or if actions of detinue were commenced severally by two persons against a third who had found 2 INTERPLEADER. the deeds, the third person was in either case allowed to call upon the two plaintiffs to interplead, and the pro- ceeding was called interpleader. But these remedies by garnishment and interpleader beilig only available in actions of detinue and under the special circumstances referred to, very little real advantage was gained by them, and with the further exception of a right of interpleading (a) where two writs of quare impedit were brought for the same avoidance, (P) two writs of ward for the same wardship (y), each of two persons was found by office in different counties, to be heir of a tenant to the King, the remedy by way of Interpleader was un- known to the Common Law.* , Inter- The only mode therefore by which a luckless stake- f/chal-"' Iiolder harassed by conflicting claims could obtain relief cerj. was by filing a bill in Chancery. That Court very early undertook to assist a person so situated, provided that he complied strictly with certain rules and conditions, which it laid down, as necessary for his observance, if he wished to be relieved. This jurisdiction that Court continued to exercise according to its own rules until the year 1875, exercising, indeed, after the year 1831 a concurrent jurisdiction with Common Law Courts, in the matter. Although, since the Judicature Act, 1875, the old juris- diction of the Court of Cha,ncery, the principles by which it was guided, and the practice by which its proceedings were regulated, are perhaps at an end, nevertheless it * Those who care to pursue the antiquarian learning about the old Common law garnishment and interpleader, can do so in Viner's "Abridgment," Tol. ix., p. 419, et seq. " Enterpleader ; " and in Reeves' "History of the Law," vol. ii., p. 637, et aeq., Finlason's edition. INTRODUCTORY. may be useful here shortly to sketch the nature of a bill ■of Interpleader in Chancery, more especially as many of the principles now regulating Interpleader practice have been adopted from the practice in Chancery. To entitle a person to file a bill of Interpleader in •Chancery, it was essential (a) that he should be in the possession of property or admit that he owed a debt or •duty : ((8) that he claimed no interest in the property himself, or was only anxious to discharge his debt : (y) •that he had received notice of conflicting claims to the property or debt in question : (8) that he was not under ■any liability to any of the defendants beyond those which arose from the title to the property in contest : (e) that the claimants claimed not under adverse titles, and that their claims were not of a different nature. If he could comply with these conditions he would pro- . p. 450 : 47 L. J. C. P. 763 : 38 L. T. 404 : 26 W. E, 583), where the defendants were sued for the detention of wine represented by dock warrants issued hy the defen- dants and endorsed for value to the plaintiff and a claim was made to the goods by a third party, it was held by the Court of Appeal (overruling the decision of the Com- mon Pleas Division), that the defendant company might interplead, the decisions in Meynell v. Angell, Best v. Hayes, and Tanner v. European BanTc were approved of, and Crawslvxy v. Thornton pointed out to be obsolete. Brett, L. J., said, " I cannot think that in this case there was any estoppel, but I confess that in my view, although a defendant in the possession of goods may be technically estopped from denying the plaintiff's claim to them, yet if a hond fide claim is made to them by a third person, a judge ought to disregard the technical estoppel and to WSEN A STAKESOLDEB MAY INTERPLEAD. 2i direct an issue under the Interpleader Acts to try the question as to the property between the plaintiff and the claimant." Very analogous to the above exploded doctrine was Eule as to the rule that where the rights claimed against the defen- "p-^'^*^''" ° ° sive rc- dant by the plaintiff and the third party are not coexteii- medy. eive, there the Court would not allow interpleader. This was the ratio decidendi of the decision of the Common Pleas Division in the case of Attenhorough v. St. Xatharine's Bock Company, but the Court of Appeal in Not recog- reversing that judgment, refused to recognize any such ^q^\ ^ rule. Lord Justice Bramwell said, " I will assume that 4«e»- the plaintiffs have substantial claims (for damages), and ^°^^ * * whatever orders may be ultimately made in these actions care will be taken to preserve any claims for damages which the plaintiffs fancy they can enforce;'' and per Brett, L. J., " I cannot agree that in order to entitle a defendant to interplead the remedy of the plaintiff against the claimant must be coextensive with the remedy against him ; " and again, " I do not think that the statutes apply merely where the opposing claims are coextensive : I think that they have a wider construc- tion." The proper course in such cases is that men- tioned by BramweU, L. J., above, viz., to reserve any question of ulterior damage or the like, till the main is^ue between the two claimants has been decided. This course seems indeed to have been indicated as early as the case of Lucas v. London Dock Company (4 B. & Ad. p. 378), where the claimant not appearing was barred, and the plaintiff was allowed to proceed, if he liked, for any special damage sustained by the detention of the wine, the subject-matter of litigation. (See too 22 INTERPLEADER. judgment of Bramwell, B., in Tanner v. European Bank, L. E. 1 Ex. p. 264). Foreigner It was formerly thought that a foreigner residing out of theluris- °^ *^^ jurisdiction could not be called upon to interplead. diction can (see to this effect /"aioMii v. Campbell, 12 M. & W. p. 277, to inter- ^^"^ Lindsey v. Barron, 6 C. B. p. 291), owing to the plead, difficulty of dealing with such a person. However, on the objection being taken in AttenborougKs case that the claimant was a foreigner, out of the jurisdiction, Bramwell, L. J., said, " It has been suggested that the- defendants ought not to be allowed to interplead because the claimant Lopez is a foreigner residing out of the jurisdiction of the High Court. This is no ground for rejecting this application, although it may be a reason for making him give a security for costs, or having him altogether barred." (As to security for costs, see post, pp. 66-68.) In the very recent case of Belmonte v. Aynard (L. R 4 C. P. D. p. 221, 352), where the claimants resided abroad, no question was raised at all as to the propriety of interpleader proceedings in such a case, the whole contest being as to whether security for costs should be given. Equitable It was greatly discussed in former times as to whether cog^zed^at *^'^ Common Law Courts could allow interpleader, when Common there was anything of an equitable character in either of beforr^" the adverse claims. At first it was thought that it could Judic. Acts not. (See Sturgess v. Claude, 1 Dowl. p. 505 ; Roach v. 1875.^ ^"S'^*' 8 M. & W. p. 155.) However, this rule was doubted in Putney v. Tring (5 M. & W. p. 425), and a series of cases before the Judicatm-e Acts {Eusden v. Pope, L. R. 3 Ex. p. 269; Duncan v. Cashin, L. R. 10 C. P. p. 554 ; Evgelbach v. Nixon, L. R. 10 C. P. p. 645 ; WEEN SSEBIFF CAN INTERPLEAD. 23 Bank of Ireland y. Perry, L. K. 7 Ex. p. 14), decided, that in interpleader proceedings Courts of Common Law would entertain equitable rights. Now by the Judicature Act, 1873, § 24, law and equity are administered con- currently by the High Court. 2. When a Sheriff or other officer of the Court IS entitled to interplead. The statutory provisions dealing with this question are 1 & 2 Wm. IV. c. 58, § 6 : and 23 & 24 Vict. c. 126, § 12. S 6 of 1 & 2 Wm. IV. c. 58, after reciting that " diffi- 1 & 2 Wm. culties sometimes arise in the execution of process „ g " ' against goods and chattels, issued by or under the authority of the said Courts, by reason of claims made to such goods and chattels by assignees of bankrupts and other persons not being the parties against whom such process has issued, whereby sheriffs and other officers are exposed to the hazard and expense of actions ; and that it is reasonable to afford relief and protection in such cases to such sheriffs and other officers," enacted, " that when any such claim shall be made to any goods or chattels taken or intended to be taken in execution under any process, or to the proceeds or value thereof, it shaU and may be lawful to and for the Court from which such process issued, upon application of such sheriff or other officer made before or after the return of such process, and as well before as after any action brought against such sheriff or other officer, to call before them," &c. &c. By the Common Law Procedure Act, § 12, it was (^nter 23 & 24 alia) provided that where a sheriff or other officer has ^^g*' s°i2 applied for relief under the Interpleader Act, it may be granted to him, "although the title of the claimants to 24 INTEBPLBABEB. the money goods or chattels in question, or to the pro- ceeds or value thereof, have not a common origin, but are adverse to and independent of one another." Sheriff can 1. By the very words of the 6th section of the Act, interplead ^j^g sheriff can interplead before any action is brought action against him. {Green v. Broiim, 3 Dowl. p. 337.) brought 2. It is necessary that the claim, when made to goods him. or chattels, should be made to goods or chattels taJcen or The claim, intended to be taJcen in execution. The goods therefore need mods oV° ^°^ ^^^^ ^^^"^ actually taken in execution ; yet, on the chattels, other hand, there must exist an intention so to take them, diattek *" Thus in Day v. Carr (7 Ex. p. 883), PoUock, C. B., said, taken or "The Interpleader Act clearly empowers the sheriff to b°*taken in ^PPV. ^^ *^^ Court if he goes with the intention of levy- execution, iiig under a^. fa. and a claim is set up to the goods, and in many cases he may be well justified in coming to the Court before he perils himself by an actual seizure under circumstances which might perhaps subject him not only to an action for the value of the goods, but also for damages for taking them." So too in Zea v. Sossi (11 Ex. p. 13 : 24 L. J. Ex. 280 : 1 Jur. N. S. 384), where the sheriff had made several ineffectual attempts to levy on the goods, but had not succeeded in doing so, and took out an interpleader summons before seizure, it was held that he was entitled to do so ; Parke, B., saying, that in such cases probably the jurisdiction (of the Court to allow interpleader) would be very rarely exercised, and Martin, B., saying that cases might arise in which great injustice would be done if a judge would not interfere unless a sheriff had seized. However, if he has not seized, he must have an intention of seizing. Thus in Holton v. Guntrip (6 Dowl. p. 130 : 3 M. & W. p. 145 : M. & H. p. 324), where the WHEN SHERIFF CAN INTEBFLEAB. 25 sheriff upon a claim being made, withdrew without mak- ing any seizure, and then applied to the Court for relief under the Act, his application was refused, the Court saying that " if the sheriff withdraw upon a claim being set up, he does not come to the Court intending to take the goods, but exercises his own judgment." 3. If the sheriff has seized the goods, then he must be Sheriff in possession of either the goods or their proceeds at the ™™ggg?,™ time of his application to the Court; and it makes no of the goods difference whether or not, when he gave up the goods, or °^Q*g"g paid over their proceeds, he had notice of the adverse when he , . applies. claims. '-" Thus in Anderson v. Galloway (1 Dowl. p. 636 : 1 C. & M. p. 182), where the sheriff had sold the goods and paid over the proceeds to an execution creditor, before he applied for relief, it was held that the Act did not apply to a case where the sheriff had paid over the money to one of the parties. So in Brauie v. Hunt (2 Dowl. 391 : 2 C. & M. 418), where the sheriff had given up the greater part of the goods seized to the claimant, it was held that he could not interplead. " I think," said Bayley, B., " the sheriff does not act fairly, if he gives up part of the goods : in fact he colludes with the party to whom he delivers them up." (See too, to the same effect, Kirk v. Almond, 2 L. J. Ex. N. S. 13.) In Scott v. Lewis (4 Dowl. 259 : 2 C. M. & E. 289 : 1 Gale, 204), rehef was refused the sheriff, where he had sold the goods and paid over the proceeds to the execution creditor, before he had any notice of any adverse claim. In Inland v. Bushdl (5 Dowl. 147 : 2 H. & W. 118), where the sheriff had handed over the pro- ceeds of the goods seized to the execution creditor, he 26 INTERPLEADER. was not allowed to interplead, even although he offered to pay into Court an equivalent sum to the amount levied. Coleridge, J., said, "If the sheriff brings the amount in question into Court, and then the execution creditor is served with the interpleader rule, he would of course not appear, and then his claim would be barred ; but barred as to what ? Barred as to the money in Coiurt, and not as to the money already in his hands." However in Anderson v. Calloway (supra), the sheriff was allowed to interplead on bringing the amount of the levy into Court, and it is submitted that the Court would now-ardays follow this latter course, since although it is, as Coleridge, J., says, almost certain practically that the execution creditor would not appear, and so the money be paid over to the other claimant, yet non constat that the sheriff may not prefer to get rid of the whole matter, even on these terms. Goods 4. The goods need not necessarily be seized in possession seized need ^^ ^^^ iudement debtor to entitle the sheriff to interplead. not neces- u o i: sarily be in The Act says nothing about the party being in pos- possession ggggjon of the goods. Accordingly in Allen v. Gibbon meS ^' (2 Dowl. 292), and in Ford v. Baynton (1 Dowl. 357), in debtor. ijoth of which cases the goods were seized while in the possession of the claimants themselves, interpleader was allowed. (See too Barker v. Dynes, 1 Dowl. p. 169.) There mast 5. There must be an actual claim to the goods or their cfaim to*the Proceeds to entitle the sheriff to interplead. goodsseized Thus in Bently v. Hook (2 Dowl. 339 : 2 C. & M. 426 : proceeds. ^ '^7^- ^^^)) 'where the only information in the nattu-e of a claim received by the sheriff was that a,Jiat in bankruptcy had issued against the judgment debtor, it was held that t'lia was not equivalent to a claiin by the assignees of the WHEN SHEBIFF CAN INTEBPLEAD. 27 goods, and as such, entitling the sheriff to' interplead. So too, in Tarleton v. Dummelow (5 Bing. N. C. 110), the Court intimated that notice by the solicitor of a petition- ing creditor that a fiat in bankruptcy had been issued against the judgment debtor was not such a claim to the goods as to warrant an application for interpleader. And in Holmes v. Mmtze (4 Dowl. 300 : 5 N. & M. 563 : 4 A. & E. 127; 1 H. & W. 608), it was held that a claim by a person as partner of the judgment debtor was not a claim entitling the sheriff to interplead. (See too per Lush, J., in W. N. 1875, 204.) 6. The sheriff cannot interplead if the claim is an The claim ' obyiously good one or an obviously bad one. must not be- Thus in Bishop v. Hinxman (2 Dowl. 166), where the ously good mortgagees of property were in possession of it, at the °^ ?°,°^^'* time of the sheriff's seizure, and claimed the growing one. crops, it was held that the sheriff could not interplead, as the mortgagees having taken possession of the land, had primd facie taken possession of the crops. So too In re the Sheriff of Oxfordshire (6 Dowl. 136), where the sheriff applied for relief, in a case, where, if he had but looked at the date of the execution of the bill of sale under which the claimant claimed, he would have found that it was executed subsequently to the date of the levy, and therefore the claim was plainly untenable, his application was refused.* In Isaac v. Spilsbury (10 Bing. 3: 2 Dowl. 211), where a claim to the goods seized was made by the * AUen V. Evans (3 L. J. Ex. N. S. 53), where the sheriff applied for relief, and it was granted, although the claimant claimed under an assignment executed after the delivery of the writ of fi. fa. to the sheriff, would not, it is submitted, be now followed. 28 INTEBPLEADBR. judgment debtor's wife, who alleged that they were vested in trustees to her separate use, interpleader was refused on the ground that the claim must be of such a nature, as may be followed by an action ; and that here the wife's claim, if any, was only such as could be recognised in a Court of Equity. However, now, the Court would not reject the application, merely because the claim was made by a cestui que trust and not by a trustee. In Salmon v. James (1 Dowl. 369), the sheriff had levied on goods under a Ji. fa., and then received notice from several parties that they had subsequently sued out writs against the defendant's goods. On his applying to the Court for relief, it was refused on the ground that he was sufficiently justified in paying over the proceeds of the levy to the first execution creditor, the notices being in fact a mere struggle for priority of claims. (See too to the same effect, Day v. Walduck, I Dowl. 523.) In Smith v. Saunders (37 L. T. 359), where" the execution debtor claimed to set off a judgment debt he had recovered against the execution creditor, it was held that this was not a claim entitling the sheriff to relief under the Act. It may be here mentioned, that with respect to claims by landlords, when the claim is for rent, it is the duty of the sheriff, on ascertaining that the rent is really due, to satisfy the claim ; and if instead of doing so, he applies to the Court for relief under the Act, his application will be refused. {Clarke v. Lord, 2 Dowl. 55 ; and Hay thorn V. Bush, 2 Dowl. 641 : 2 C. & M. 689.) In BaUman v. Farnsworth (29 L. J. Ex. 365) where, the sheriff having seized stock and tenant-right on a farm the landlord WHEN SHEBIFF CAN INTERPLEAD. 29 claimed (1) his ordinary rent accrued due ; (2) certain penal or additionalrent; (3) the tenant-right consisting of manure thrown into the soil and seed sown but not yet sprung iip, the sheriff's application was refused on the ground that there was no claim not even in respect of the alleged " tenant-right " to chattels as the property of the claimant, or their proceeds. As to the course which the sherijff should pursue in such a case, Pollock, C. B., said, " He must do as he does in the numerous cases not within the Interpleader Act ; take good advice, and do the best he can." 7. The sheriff may interplead, although the claimant Interplea- claims only a lien and not the absolute property in the though^^ goods seized. Thus in Ford v. Baynton (1 Dowl. 357), claimant where the claimant claimed a lien on a horse in his °" j^^ ^™^ possession, seized by the sheriff, for the keep of it and another horse which had been removed, it was held that the sheriff might interplead. " In the commercial world," said Taunton, J., " a lien may be equal to the whole value of the goods." 8. The sheriff may interplead, although the- claimant -A^nd is an infant. {Claridge v. Collins, 7 Dowl. 698 : 3 Jur. ciaimait 894.) " If there is any difficulty," said Williams, J., "it an infant, is one which arises between the litigant parties, but the sheriff at all events is entitled to relief." 9. The sheriff may interplead, although the claim made Judgment to the goods seized is made by the judgment debtor him- cilimLg en self claiming them, not in his own right, but in some ««*« claimant to attend before the Master (or Judge) at the bers. time when the summons is returnable on the hearing of an application by the defendant that they should appear and state their claims, &c., and that in the mean- time all further proceedings should be stayed. (See form of summons, post, in Appendix A, form 1. p. 117.) A Master had formerly no jurisdiction in interpleader Master's matters, and so the summons was always a judge's Jjg„ j^ ' summons ; and originally under the Judicature Acts (see interplea- Order LIV. rule 2 of the Rules of the S. C. 1875) inter- ^'^''■ pleader proceedings were solely under the jurisdiction of a judge, except in matters of practice. Now, however, by the Eules of Court of November, 1878, rule 4, a Master has full jurisdiction in all interpleader proceedings, " except where all parties consent to a final determina- tion of the question in dispute without a jury or special case, and except where the sum in dispute is less than £50 and one of the parties desires such a determination,"' 42 INTERPLEADEB. Jurisdic- tion of District In such cases the question shall be determined by a Judge, unless the parties agree to refer it to the Master. As therefore, with the consent of the parties {i.e. the plaintiff and the claimant), a Master has jurisdiction even in the two cases otherwise excepted by the Eule of November, 1878, it is submitted that the proper course for the defendant to take is always to take out a Master's summons, and if, upon the hearing, it turns out that the case is one for the Judge's decision, and the requisite consent to give the Master jurisdiction to decide sum- marily cannot be obtained, it will, if a summary deter- mination is required, be the Master's duty to refer the whole matter to the Judge. With respect to the jurisdiction of District Eegistrars in interpleader,' it is provided by Rules of the S. C. 1875, Eegistrais. Order XXXV. rule 4, that " where an action proceeds in a District Registry the District Registrar may exercise all such authority and jurisdiction in respect of the action as may be exercised by a Judge at chambers, except such as by these Rules a Master of the Queen's Bench, Common Pleas or Exchequer Division is precluded from exercising. It follows, therefore that the jurisdiction conferred on Masters by the above stated rule of November, 1878, is exerciseable also by District Registrars, who therefore, except in the two cases mentioned in that rule, now have full jurisdiction in interpleader proceedings. It was held in an old case, when it was the custom to apply to the Court by a rule, that the defendant, if he be sued in two sued by both the claimants, and in different courts, must ac ions. obtain rules in the actions in each Court. {Allen v. Gilbey, 3 Dowl. 143.) It seems to follow, by analogy now, that Course when de' fendant PRACTICE IN STAKEHOLDEB'S INTEBPLEADEB. 43 if the defendant be sued by botb parties, his 'summons must be intituled in both actions, calUng on both plaintiffs to appear and state their claims, and asking for a stay of proceedings in both actions. It would probably make no difference whether the actions were commenced in the same or different Divisions of the High Court. Though no particular form of summons is required, Form of and in Frost v. Heywood (2 Dowl. N. S. 801 : 21 L. J. s^mons. Ex. 242), a rule calling on the parties to appear before the Court, in order that it might exercise its jurisdiction on the adjustment of the several claims, was held suffi- cient in its terms, yet it is best to adopt the form now in general use, as far as is possible. The summons must be duly served on the plaintiff and Service claimant, or claimants if more than one. As to what tliereof. constitutes sufficient and insufficient service of a rule or summons on a party called upon to appear, see Lambert V. Townsend (1 L. J. Ex. N. S. 113), and Phillips v. Spnj (1 L. J. Ex. N. S. 115). No order will be made against a party not served or insufficiently served : and before an order will be made against a party not appearing, it must be shown by an affi- davit of service, that he has been duly served. (See form of affidavit of service, post, in Appendix, p. 119, form 4.) It was held formerly that if any claimant gives notice of his claim subsequently to the obtaining of the rule nisi, he can be made a party to the rule, and the rule can be enlarged, if necessary. (Walker v. Kerr, 12 L. J. Ex. N. S. 204 : 7 Jur. 156 ; Kirh v. Glarh, 4 Dowl. 363.) In the case of proceedings instituted by summons, on a claim being made pending the return of the summons, the summons would probably be adjourned to enable the 44 INTEBPLEADEB. Proceed- ings on When neither claimant norplaintiff appear. Where plaintiff does not Where claimant does not appear. Where iDOth appear. new claimant to appear and state his claim, unless there was time to enable him to appear without an adjourn- ment. On the return of the summons both the plaintiff and the claimant may appear : neither of them may appear : one of them may, and the other may riot, appear. If neither of them appeared, it is submitted that the action against the defendant would be stayed, he obeying the order of the Court as to the disposal of the money or goods in his possession, after deducting his own expenses therefrom. (Cf. Eveleigh v. Salisbury, 3 Bing. N. C. 298 : 5 Dowl. 369 : a sheriff's case.) If the plaintiff do not appear, it is submitted that the action against the defendant would be stayed : thB defendant would be ordered to give up the goods or money to the claimant : all this being without prejudice to any rights the plaintiff might afterwards assert against the claimant. (Cf. Bohle v. Cummins, 7 Ad. & Ell. p. 580 : and post, p. 76.) If the claimant do not appear, he will be barred from ever prosecuting his claim against the defendant, saving nevertheless his right or claim against the plaintiff: and as between the plaintiff and defendant, the Court will make such order as may be just and reasonable. (Act of 1831, § 3.) The course adopted would no doubt, as a rule, be for the property to be given up to the plaintiff. (See fost, p. 70, as to defendant's costs, when the other parties do not appear.)' If, however, both parties appeared, then they must be prepared to support their claims by affidavit,* shortly * Perhaps it is not essential that the plaintiff should appear with an affidavit ; an execution creditor need not {Angus v. Wootton, 3 M. & W. PBACTIGE IN STAKREOLDUB'S INTEBFLEADEB. 45 stating the grounds of their respective claims. (See form of a claimant's aflSdavit, fost, in Appendix A. , form 3, p. 1 1 8 : a plaintiff's would be very similar.) The affidavit of the defendant (Appendix A., form 2, p. 118), and also of the other parties, should be intituled in the original action. (Pariente v. Pennell,7 Sc. N. R. 834 ; £evi v. Coyle, 2 Dowl. N. S. 932.) These affidavits had better be sworn by the parties themselves : but this is not absolutely necessary if it is impracticable. Thus, in Webster v. Delajield (7 0. B. 187 : 18 L. J. C. P. 187 : 6 D. &L.597 : 13 Jur. 635), it was held by the Court of Common Pleas that an affidavit by the solicitors to the claimant who resided abroad, alleging that from documents in their possession they beheved the claimant was entitled to the property, was a sufficient affidavit to entitle the claimant to have the matter settled by an issue. Upon this, there are several courses open. 1. The matter may he decided summarily. Siimraary This course may always be, adopted (a) with the con- determina- sent of the parties (i.e. of the plaintiff and the third party or parties : § 1 of Act of 1831). Unless, however, the parties consent, not only to a summary decision, but also that that summary decision shall be made by a Master, the Master has no jurisdiction apart from such consent to decide summarily, save in the one case of the question being purely one of law. (See Rules of JSTov. 1878.) (/3) Where the question is one of law, and the facts are not in dispute, the Judge or Master may, in his discretion, 310), but in his case rss ipsa, loquitur. But the plaintiff had hest be provided with evidence of his case. The claimant must {Powell ■/, Loch, 3 Ad. & EU. 315 : 1 H. & W. 381). 46 INTEBPLEABEB. decide the matter summarily. (C. L. P. Act, 1860, § 15-) (■y) When the sum in dispute or the value of the goods in dispute is under £50, the Judge may, if it appears desirable and right, decide the matter summarily at the request of either party. (C. L. P. Act, 1860, § 14 : and Eules of Nov. 1878.) In these three cases then a summary decision is allow- It is final, able. With respect to the summary decision it should be remembered that it is final (see § 17 of the C. L. P. Act, 1860, and Skortridge v. Tounc/, 12 M. & W. 52), and that not even with the consent of the parties themselves can the Judge or Master, after having given a summary decision, give a power of appeal : for he is functiis officio. (See Bodds v. Shepherd, L. E. 1 Ex. D. 75 : 45 L. J. Ex. 457 : 34 L. J. 358 : 24 W. R. 322.)* The order on a summary decision, if made by consent, should state the consent on its face : otherwise it was held in Harrison v. Wri(/ht (13 M. & W. 816), that it would be had as an order, though it may be supported as an award between the parties. (See form of order deciding summarily, post, in Appendix A, form 9, p. 121.) Of course if the matter were to come before the Court in the first instance, it would have the same power of deciding summarily as the Judge at Chambers (§ 1 of Act '* Here it may be remarked for practical pm-poses that if counsel, or the persons representing the parties, do not consent, or intend to consent to a summary decision, they must not only announce their intention at once, but must also refuse to go into the merits of the case, or go into them only so far as to indicate, what, in their view, the next proper steps to take, are ; otherwise they may unwittingly have found themselves entrapped by a summary decision, against which there is no appeal. PRACTICE IN STAKEHOLDER'S INTERPLEADER. 47 of 1831), and' again if the matter be referred to the Court from Chambers, then, having the power to deal with the matter as if it had originated with it, it may decide summarily. 2. The claimant may be made defendant in the action in Substitu- the place of the defendant interpleading or defendant in some }°^, ^\r^' other action (§ 1 of Act of 1831). In this case, the action proceeds, exactly like any other action, after the pleadings have been closed to trial. On the trial, the issue would be the issue disclosed by the pleadings. This order substituting the defendant may be appealed from to the Judge ; from him to the Divisional Court ; from the Divisional Court to the Court of Appeal, by the party dissatisfied with it. (See form of order directing this substitution of defendants, yost, in Appendix A, form 7, p. 120.) 3. The matter mny he referred, just as it is, in toto from Eeference the Master to the Judge and from the Judge to ilie Court, ^Jj^Q^^t" to deal with, and the Court mny deal with the matter, just as if it had originated there. (§ 5 of Act of 1831.) From the nature of things, this order could hardly be appealed from. But from the order of the Court (or of the Judge, if the matter had been referred to him by the Master), there would be the usual appeal unless the matter was summarily decided. 4. Where the question is one of law, a special case may Special case he ordered. (§ 15 of C. L. P. Act, 1860.) ^^y_J« The order directing a special case may be appealed from, like any other order. § 16 of the C. L. P. Act, 1860, says that proceedings on a special case shall be like the proceedings on special 48 INTEBPLEADEB. case under the sections of the C. L. P. Act, 1852, and error may be brought thereon. Special cases are now regulated by Order XXXIV. of the Eules of the S. C. 1875. Error is now abolished, and appeal substituted : and the judgment of the Divisional Court on a special case may be appealed from in the manner in which appeals are brought according to the provisions of the Judicature Act. The judgment on a special case would be an interlocutory judgment, and the appeal from it would therefore, accord- ing to Order LVIII. rule 15, of the Kules of the S. C. 1875, have to be brought within twenty-one days. (Cf. Standard Discount Company v. La Grange, L. R. 3 C. P. D. 67j and McAndrew v. Barker, L. R. 7 Ch. Div. 701.) (See form of order directing special case, post, in Appendix A, form 11, p. 122.)* Direction 5. Tlie remaining method of dealing with the matter is by of issue. ^j^ direction of an issue. In considering the different questions relating to the issue, the cases relating to the issue in interpleader pro- ceedings at the suit of the sheriff, as well as at the suit of a defendant, must be dealt with, the procedure in the two cases being the same, and the decisions in each illustrating equally the practice in both. This is the ordinary method of dealing with the matter * It is to be regretted ttat a special case is not oftener resorted to, as a mode of settling the question in interpleader. It often happens that no real issue of fact presents itself, and after all the expense and delay of preparing and coming to Court to try an issue, a. special case is ordered to be stated, or the jury discharged, and the question re- served by the Judge for further consideration : some little foresight, or effort to arrive at a mutual understanding at Chambers, would have led to the most expeditions mode being resorted to in the first instance. PJRAGTIOE IN STAKEHOLDER'S INTEBPLEABEB. 49 -when there is any disputed question of fact upon which the result will depend. The order directing the issue will direct as to who Form of shall be plaintiff in the issue and who defendant : as ^°l^^^J,^\^ rule the plaintiff in the action is made plaintiff in the issue, and the claimant defendant, in ordinary Inter- pleader; and the claimant plaintiff and the execution creditor defendant in sheriffs interpleader. The order will further direct what shall be the question to be tried between the parties to the issue ; where and when the trial shall take place ; and what according to the event shall be the disposition as to the payment of costs, or if it is silent as to this, the question wiU, after the event, be disposed of by the Judge before whom the issue is tried (the general practice), and if not . by him, by the tribunal . directing the issue. {Maris v. Rid^gway, 1 Ex. 8.) (See post, in Appendix A, form 8, a ' form of order directing issue, p. 121.) Formerly, before the passing of 8 & 9 Vict. c. 109, the form of the issue was a feigned issue, alleging a pretended wager : by the 1 9th section of that Act, however, a new form of issue was provided, which with but little variation is the one in use now (see form of issue, post, in Appendix B, form 9, p. 129) ; for although the effect of the Act was not to render a feigned issue illegal {Luard v. Butcher, 15 L. J. N. S. C. P. 187), yet, as a matter of fact, the feigned issue has now fallen for the most part, out of use. The order directing the issue may be appealed from, to Order the Judge, if directed by a Master, and thence to the Divi- f'J ^"''"^ ^^ " JSSU6 tip" sional Court and the Court of Appeal ; or to the Divisional pealable Court direct, if the order is originally made by a Judge. ™™' As to the practical directions with respect to the Practical directions 50 INTEliPLEABER. forprepar- framing of the issue, the following are given in the last edition of Archbold's Practice, voL L p. 733. " Get a copy of the rule or order for an issue and leave it with counsel with instructions to prepare a draft of the issue. When settled leave a copy of it with the opposite solicitor, who will also have it settled by counsel. In general the rule or order points put the time within which the issue must be delivered and returned. If not so, it must at all events be delivered and returned in a reasonable time. If the counsel on both sides cannot agree upon the form of the issue, you should get an appointment for a meeting between them ; and if they are still unable to agree upon the form of it, then the course is to attend before the Judge, and he wiU decide upon the form of the issue, or refer it to a Master." All applications relative or incidental to the course of proceedings in the issue should be made to the same tribunal by which the issue was directed. ( Per Wilde, C. J., in Hargrave v. Hargrave, 4 C. B. 650.) Thus if the plaintiff in the issue fail to deliver it within a reasonable time, when no time is mentioned in the order limiting the period within which it must be delivered, an order may be obtained, or the original order amended, limiting the time for its delivery, and in the event of this order not being complied with, an order may then be obtained for delivering over the subject-matter of litigation to the defendant in the issue, with costs. {Stanley v. Perry, 1 H. & W. 669.) Unless founded on a summons, however, this order would only be an order nisi in the first instance. If issue If the order directing the issue becomes useless, it may becomes be discharged. Thusin ZwcAiiii v. the rule being that if the sheriff has acted hondjide, and 82 INTEBPLEADEB. not been guilty of any gross and culpable neglect, he shall not be subject to any action. The cases of Hollier v. Laurie (3 C. B. 344) and Abbott V. Richards (13 M. & W. 194), in which it was held that the successful claimant might bring an action against the sheriff for trespass to the premises, though not for con- version of the goods, would not be followed, and must, it is submitted, be considered as having been overruled in the case of Winter v. Bartholomew. By execu- With respect to an action by the execution creditor tor"agaWt ^^^^^^ t^^ sheriff, as a general rule, as the order sheriff. directing the issue restrains any action against the sheriff, this would of course include an action by the execution creditor. Generally speaking, the circumstances would not be such as to give the execution creditor any such right of action. However, in Brackenbury v. Laurie (3 Dowl. 180), where an issue was directed, it was made part of the order by Parke, B., that the sheriff should be discharged from all liability except for any neglect he may have been guilty of in executing the writ, and in not appointing a deputy according to the Act : there being grounds on which the execution creditor claimed a right against him, if by reason of them he should be defeated in the issue. The circumstances of the case do not appear to admit of any independent action by the sheriff against either the execution creditor, or the claimant; nor does any such action by the execution creditor against the claimant seem to be practicable. Byclaimant The only other action possible therefore is one by the against claimant against the execution creditor, and the order PRACTICE IN SEEBIPrS INTEBPLEADEB. 83 directing the issue, or otherwise disposing of the matter, execution may stay any such action. (Carpenter v. Pearce, 27 L. J. '"^®' ^*'"^" Ex. 143.) However, " no action " as a rule means no action against the sheriff only. (Hook v. Ind, Coope 5 take is to apply " to the Court or a Judge, and claim the benefit of the interpleader orders and call upon the sheriff to sell the goods " (per Bramwell, L. J., p. 53); and {per Brett, L. J.), "I am inclined to think that the sheriff might be attached for not obeying the order made at his own instance." The London Court of Bankruptcy has the same juris- Jurisdic- •diction in interpleader as the High Court of Justice! n^LT f {Re Buck, 48 L. J. Bank. 33 : 39 L. T. 653 : W. N. Blnk-" 1879, 16.) ^P^^y- If a party takes any steps in violation of an inter- Attach- pleader order, he can be attached for contempt of"^"' ^^ Court. Thus in Cooper v. Asprey (32 L. J. Q. B. 209 : 3 B. & S. 932), where, after service of the sheriff's interpleader summons on the claimant, the latter not only continued in possession of the goods, but proceeded to sell them, an order to attach him was made absolute. (Cf. too Angell V. Baddeley, uH supra.) Costs in Sheriff's Interpleader. With respect to the Costs, costs of the proceedings in sheriff's interpleader, the car- dinal rule with respect to the sheriff's costs, is, that he Of sheriff, always pays his own, iowever proper and meritorious his conduct may have been ; it being thought that the Act had conferred suf&oient benefit on him by allowing him to interplead at all, and so relieve himself from a liability cast upon him by law. {Barker v. Dynes, 1 Dowl. 169 ; Bryant v. Ikey, 1 Dowl. 428 ; Morland v. Chitty, 1 Dowl. 520 ; Field v. Cope, 1 Dowl. 567.) Even if the execution creditor or the claimant, fails to appear upon the rule or summons, none the less does the sheriff pay his own costs. {Oram v. Sheldon, 3 Dowl. 640 ; 86 INTEBPLEADBB. West V. Rotherham, 1 Hodges, 461 ; Berwick v. Thomm, 5 Dowl. 458.) However, if there were anything vexatious in the proceedings of a claimant, he might have to pay the sheriffs costs. {Tlwmpson v. Sheddon, 1 Scott, 697 ; Cox v. Fenn, 1 Dowl. 50.) On the other hand, the sheriff will never be ordered to pay the costs of any of the disputants, unless there has been something wrong or vexatious in his conduct. {Morland v. Chitty, 1 Dowl. 520; Bland v. Delano, 6 Dowl. 293.) If either the claimant or the execution creditor apply to open an order made, and so bring the sheriff forward again, he wiU get his costs for this second appearance of his {Bryant v. Ikey, 1 Dowl. 428); but if this second application is really nothing more than a prolongation before the Court of the discussion on the matter at Chambers, the sheriff will not get his costs of it. {Tilleard v. Cave, 6 B. N. C. 251.) Where neither the claimant nor the execution creditor appeared upon the summons, th« sheriff was ordered to sell so much of the goods as amounted to his poundage and expenses of sale, and to abandon the remainder of the goods seized. {Eveleigh v. Salisbury, 3 B. N. C. 298.) Where the sheriff seeks to interplead in a case, or under circumstances, in which he is not entitled to do so, and his application is refused, he wiU, as a rule, be ordered to pay the costs of both the other parties. (Braine v. Hunt, 2 Dowl. 391 ; BisJiop v. Hinxman, 2 Dowl. 166 ; Be Sheriff of Oxon, 6 Dowl. 136.) " The expenses of the execution," to which, under 43 George III. c. 46, § 5, the sheriff is entitled, does not include the costs of interpleader proceedings, but it applies only to " poundage, sheriff's fees and the like.'' {Hammond V. Nairn, 1 Dowl, N. S. 351.) PBAGTICE IN SHERIFFS INTEBPLEABEB. 87 With respect to the expenses of the 'execution, the sheriff's right to his "poundage, sheriff's fees and the like," depend on the legality of the seizure. If therefore it turns out that the goods belonged to the claimant, and ought not therefore to have been seized, the sheriff will not get them. He cannot therefore retain them out of the proceeds of sale in the first instance, and he will only- get them ultimately if the execution creditor succeeds. {Barkers. Dynes, 1 Dowl. 169; Morland v. CMtty, 1 Dowl. 550.) As to " possession money," the sheriff will, as a rule, get it as from the date of his application, and not before, in any event ; because if the execution creditor ultimately succeeds, then the unsuccessful party will have to pay him his expenses of keeping possession (Scales v. Sargeson, 4 Dowl. 231) ; if the claimant succeeds, then the execution creditor will have to pay him these expenses. (Babhs v. Humphries, 3 Dowl. 377.) In fact, in this case, the sheriff may be regarded from the time of his application, in holding the goods, or their proceeds, if he has sold them, as agent for the parties. He does it, not merely in furtherance of his duties, but for the benefit of both parties. {Undei-den v. Burgess, 4 Dowl. 104; West v. Sotherham, 2 B. N. C. 527.) In GasMl v. Sefton (14 M. & W. 802) it was decided that the term "possession money " did not include the cost of keeping cattle taken in execution : and so the sheriff, who in that case had been ordered to withdraw on payment of possession money, was not allowed to make an additional charge for the keep of cattle. The sheriff is entitled to be paid the expenses which he incurs in keeping possession of the goods seized, 88 INTERPLEADER. where he does so for the benefit of the parties, who have agreed that he shall keep in possession. ( Underden v. Burgess, 4 Dowl. 104 ; of. Scales v. Sargeson, 4 Dowl. 231.) The sheriff is further entitled, in the words of Williams, J,, inArmitage v. Foster (1 H. & W. 208), "to the expenses he has been put to by acting in obedience to the rule of Court." (See too Clarke v. Clietwode, 4 Dowl. 635, where the sheriff was not allowed anything for keep- ing in possession during a period necessitated by his taking wrong proceedings which proved abortive.) If the sheriff calls upon a landlord to interplead, instead of satisfying his claim to rent, if it is a valid one, he will have to pay the costs of the landlord's appearance. {Clarke v. Lord, 2 Dowl. 55.) Of execu- With respect to the costs of the execution creditor dit ^^^ °^ *^® claimant or claimants, of course if they both and claim- appear, the costs of the issue, or other proceeding by which the matter is settled, will, as in ordinary interpleader, have to be paid by the unsuccessful party. {Bragg v. HopUm, 3 Dowl. 346 ; Melville v. Smark, 3 Sc. N. E. 357.) With respect to the apportionment of costs, where both the parties are partially successful, see ante, pp. 71-73. Where by arrangement between the execution creditor claimant and sheriff, the summons was postponed to make inquiries, and as a result of these inquiries, the ex- ecution creditor abandoned his execution, the claimant's application for his costs incurred in attending the sum- mons was refused. {Swaine v. Spencer, 9 Dowl. 347.) If, on the sheriff's summons, the execution creditor fails to appear, he cannot be ordered to pay the claimant's costs of appearing, and the execution creditor is not ant. PRACTICE IN SHEBIFJfS INTEBPLEADEB. 89 bound to appear where he finds that there are no goods liable to his execution (Glazier v. Cooke, 5 N. & M. 680) ; Bemneh t. Thomas (5 Dowl. 458), and Bryant v. Ihey (1 Dowl. 428), must be considered as to this, to be over- ruled. If the claimant do not appear, but the execution creditor does, no costs can be given against the claimant. {Jones V. Lewis, 8 M. & W. 264 ; Lambert T. Cooper, 5 Dowl. 547.) If after the direction of an issue, either the claimant or the execution creditor abandon the issue, the party thus in default will have to pay the costs ,of the other party up to the time of the abandonment, and also the costs of the application, if necessary, to obtain money out of court. {Dabbs v. Humphries, 1 Bing. N. C. 412 : 3 Dowl. 77 ; Wills v. HopMns, 3 Dowl. 346.) In Scales v. Sargeson (3 Dowl. 707), where it was made a condition precedent to the claimant's right to have an issue that he should pay a sum into Court, it was held on his failure to do so, that he must pay the execution creditor the costs occasioned by his false claim, and also the costs of the execution creditor's application to obtain pay- onent of the proceeds of the sale (but as to this last point, see Bowen v. Branidge, 2 Dowl. 213). 90 INTEBPLEADER. Note on the Chancbrt Pbaotiob. No special reference has been made to the procedure in the Chancery Division under the Interpleader Acts, nor is special reference needed, the Common Law practice being applicable in its entirety. In the Chancery chambers, the Judge is represented by the Chief Clerk, and the summons would probably come before him in the first instance. If a party is dis- satisfied with the Chief Clerk's decision, the matter is adjourned for the purpose of taking the opinion of the Judge himself in Chambers. Before an appeal can be made to the Court of Appeal from the decision of a Judge in Chambers, it is necessary that the Judge should give a certificate that he does not require to hear the matter argued before him again in Court. If a Judge does not give such a certificate, the matter must be re- argued in Court, before the appeal to the Coiirt of Appeal. If an issue is directed in Chancery, then subject to the right of either party to have the question of fact decided by a jury, in which case the issue would be sent down to be tried before a Common Law Judge and jury, the issue would be tried before the Judge in Court without a jury. {McAndreio v. Barker, L. E. 7 Ch. Div. 701.) Whether the right course for a party dissatisfied with the Judge's order on the hearing is to apply to the Judge for a new trial, or to appeal from the order to the Court of Appeal, is not an easy question to answer, and can only be answered after a careful investigation of Krehl v. Burrell, L. E. 10 Ch. Div. 420 ; Lowe v. Lowe, L. E. 10 Ch, Div. 432; Jones v. Hovgh, L. E. 5 Ex. Div. 115; PRACTICE IN SHERIFFS INTERPLEADER. 91 and Potter v. Cotton, L. K. 5 Ex. Div. 137, from which it will appear moreover, that the matter will depend to a great extent on the manner in which the Judge treats the matter in Court. Perhaps the fact that the parties have come to try a definite issue of fact, would bring the case within the principle of KreJd v. Burrell. If the issue be sent down by the Chancery Division to be tried by a jury in a Common Law Division, it is an equally difficult question whether an application for a new trial should be made to the Divisional Court of which the Judge, before whom the issue was tried, is a member, or to the Judge of the Chancery Division, who directed the issue. (See the recent case of Jenkins v. Morris, L. E. U Ch. Div. 674.) CHAPTER III. INTEEPMIADEB IN THE COUNTY COURTS. The jurisdiction in interpleader given to the Courts of Common Law by 1 & 2 Wm. IV. c. 58, was found to be so great a boon to the community in general, and par- ticularly to sheriffs in the exercise of process, that upon the establishment of County Courts in 1846 it was deter- mined to give those Courts a power to relieve high bailiffs, analogous to the power exercised by the Superior Courts for the relief of sheriffs. 9&10Viet. Accordingly § 118 of the Act 9 & 10 Vict. c. 96 dealt c. 96, §118. ^^^Yi the right and method of interpleading in the County Courts.* » By this section it was enacted that " if any claim shall be made to or in respect of any goods or chattels taken in eieoution under the process of any Court holden under this Act, or in respect of the proceeds or value thereof by any landlord for rent, or any person not being the party against whom such process has issued, it shall be lawful for the clerk of the Courb, upon application of the officer charged with the execution of such process as well before as after any action brought against such of&cer, to issue a summons calling before the said Court as well the party issuing such process as the party making such claims, and thereupon any action which shall have been brought in any of Her Majesty's Superior Courts of Record or in any local and inferior Court in respect of such claim shall be stayed, and the Court in which any such action shall have been brought, or any judge thereof, on proof of the issile of such summons, and that the tion are made. INTEBPLEADBB IN THE COUNTY COURTS. 9» Proceedings in interpleader were regulated under this provision until 1867, when the County Courts Act, 1867 (30 & 31 Vict. c. 142), was passed. This Act repealed the 118th section of 9 & 10 Vict. c. 96 : but dealt with interpleader proceedings in its 31st section ; by which and the provisions of Order XXI. of the County Court Eules of 1875, the present practice is regulated. Section 31 of the Act of 1867 provides as follows : — 30 & 31 " If any claim shall be made to, or in respect of any goods J*"*- p- or chattels taken in execution under the process of a™. ' ^ .-..^ County Court, or in respect of the proceeds or value may inter- thereof by any person, it shall be lawful for the Eegiatrar J^f^^^s^t® of the Court upon application of the High Bailiff, as well goods taken before, as after any action brought against him, to issue a ^? e^^cu- goods and cliattels were so taken in execution, may order the party tringing such action to pay the costs of all proceedings had upon such action after the issue of such summons out of the County Court ; and the judge of the County Court shall adjudicate upon such vlaim and make such order between the parties in respect thereof and of the costs of the proceedings as to him shall seem fit, and such order shall be enforced in like manner as any order made in any suits brought in such Court." It was a moot point under this section whether the County Court Judge's jurisdiction was confined to the determination of the right to the goods in dispute, or whether he could go into the question of damages for trespass in the seizure of the goods, and other consequential damage. In Mercer v. Stanhury (25 L. J. Ex. 316) ; Cater y. Chig- weU (15 Q. B. 217) ; and Jones v. Williams (4 H. & N. 704), the claimant who was successful was allowed afterwards to sue the execution creditor for damages for the trespass in the seizure of the goods. In Foster v. Pritchard (2 H. & N. 151) the successful claimant was allowed to sue the bailiff. But if the claimant were unsuccessful, even under this Act, he was not allowed subsequently to sue the bailiff for trespass {Jessop v. Crawley, 15 Q. B. 212 ;. Tinhler v. Silder, 4 Ex. 187), and of course he could not in such a case sue the execution creditor. As to the present law on this, see Death v. ffarrison (L. K. 6 Ex. 15).] 94 JNTEBPLEADEB. summona calling before the said Court as well the party issuing such process as the party making such claim, and the Judge of the Court shall adjudicate upon such claim and make such order between the parties in respect thereof and of the costs of the proceedings as to him shall seem fit, and shall also adjudicate between such parties or either of them and the High Bailiff with respect to any damage or claim of or to damages arising or capable of arising out of the execution of such process by the High Bailiff, and make such order in respect thereof and of the costs of the proceedings as to him shall seem fit j and such orders shall be enforced in like manner as any order in any suit brought in such Court, and shall be final and conclusive as between the parties and as be- tween them and either of them and the High Bailiff, unless the decision of the Court shall be in either case appealed from, and upon the issue of the summons any action which shall have been brought in any Court in respect of such claim or of any damage arising out of the execution of such process shall be stayed." County Order XXI. of the " County Court Eules of 1 875 " deals Court Tuiila. the procedure under this 31st section, in its different 1875,' rules ; and by the last two rules of the order, it will be Order XXI. found that the right of interpleading in the County Court is extended to a defendant sued in an action brought by the assignees of a debt or chose in action. Eule 1 of this Order provides — [Proceedings generally.] Where any claim is made to or in respect of any goods or chattels taken in execution under the process of any County Court or in respect of the proceeds or value thereof, and summonses have been issued on the application of the bailiff, such sum- INTEBPLEABER IN TEE COUNTY COURTS. 95 monses shall be served in such time and mode as herein- before directed for an ordinary summons to appear to a plaint, and the case shall proceed as if the claimant were the plaintiif and the execution creditor the defendant ; provided that where the claimant has not at the request of the bailiff made deposit in accordance with § 72 of the County Courts Act, 1856, the time of service may if the high bailiff so desires, by leave of the judge or registrar, be such time as will obtain a speedy decision on the claim. 2. [Claimant to lodge particulars and grounds of claim.] The claimant shall five clear days before the return day deliver to the bailiff or leave at the office of the registrar of the Court a particular of any goods or chattels alleged to be the property of the claimant and the grounds of his claim, or in case of a claim for rent, of the amount thereof and for what period and in respect of what premises the same is claimed to be due, and the name address and description of the claimant shall be fully set forth in such particular, and any money paid into Court under the execution shall be retained by the registrar until the claim shall have been adjudicated upon : provided that by consent of all parties, or with- out such consent if the judge shall so direct, an inter- pleader claim may be tried, although this rule has not been complied with. 3. [Claim of damage.] Where the claimant to goods taken in execution claims damages from the execution creditor or from the high bailiff for or in respect of the seizure oi the goods, he shall in the particulars of his claim to the goods, state the amount he claims for damages and the grounds upon which he claims damages. 96 INTERPLEADER. 4. [Claim of damages against high bailiiFs.] Where an execution creditor claims damages against a high bailiff arising out of the execution of any process he shall five clear days before the return day deliver to the high bailiff a notice of such claim stating the gi-ounds for and amount of such claim. 5. [Payment into Court of damages claimed under 30 & 31 Vict, c. 142.] Where a claim for damages under section 31 of the County Courts Act, 1867, is made against any high bailiff and execution creditor or either of them, they or either of them may] pay into Court money in full satisfaction of such claim for damages, and such payment into Court shall be made in the same manner and have the same effect and the parties respectively shall have' the same rights and remedies as by the practice of County Courts they would respectively have if the proceeding had been an action in which the claimant was plaintiff and the high bailiff and judgment creditor defendants. 6. [Interpleader Summons. ] Interpleader summonses shall be issued by the registrar on the application of the bailiff without leave of the Court. 7. [Whence issued.] Interpleader summonses shall be issued from the Court of the district in which the levy was made, and the execution creditor and claimant shall be summoned to such Court. 8. [Costs where decision against claimant.] Where the claim to any goods or chattels taken in execution or the proceeds or value thereof shall be decided against the claimant, the costs of the bailiff allowed by the Judge shall be retained by him out of the amount levied, if the Judge shall not otherwise order, but without INTERPLEADER IN THE COUNTY COURTS. 97 prejudice to the right of the execution creditor against the claimant for the sum so retained. 9. [Where assignor disputes an assignment. — Form 19.] Where the defendant in an action brought by the assignee of a debt or chose in action has had notice that the assignment is disputed by the assignor or any one claiming under him, or has had notice of any other opposing or conflicting claims to such debt or chose in action, he may within five days of the service of the summons apply to the Eegistrar for a summons against the assignor or the person making such conflicting claim, and the Eegistrar shall thereupon issue an Interpleader summons according to the form in the Schedule, return- able as soon as conveniently maybe; and upon the return day of such summons the Court shall hear the case of the defendant and of the plaintiff in the action, and also of the assignor disputing such assignment or of the person making such opposing and conflicting claim, aiid shall give such judgment therein as shall finally determine the rights and claims of all parties as if the same had been an ordinary action into which a third party had . been introduced by counterclaim. 10. [Defendant in an action by assignee may pay money into Court. — Form 20.] Where a defendant in an action brought by the assignee of debt or chose in action has had notice as in the last preceding rule mentioned and thinks fit to pay the debt and costs into Court to abide its decision, he shall upon such payment into Court give to the registrar the name of the person against whose dispute of the assignment or conflicting claim he desires to be protected, and the registrar shall thereupon give notice to such person according to the 98 INTERPLBADER. form in the Schedule, and on the return day of the summons the Judge shall determine the rights of the parties, and may, if he thinks fit, order the defendant to pay all or any part of the costs. The course of proceedings then is as follows : — Procedure. The BailiiF having taten the goods in execution, re- ceives notice from the claimant of his claim to the goods. This need not be in writing, nor in any particular form ; but a distinct claim in writing had better be given. If the claimant also claims damages against either the execution creditor or the Bailiff, or both of them, he had better include this too in bis notice of claim, though pos- , sibly, having- regard to the provisions of Order XXI. rule 4, the claimant need not give notice of his claim to damages till the delivery of his particulars and grounds of claim. It may so be that the claimant is anxious that the goods taken in execution should, if still unsold, not be sold. If so, he must comply with the provisions of " The 19 & 20 County Court Act, 1856 " (19 & 20 Vict. c. 108), which, Yict. 0. by its 72nd section, enacts that " Where any claim shall be made under section one hundred and eighteen of the Act of the ninth and tenth years of the reign of her present Majesty, chapter ninety-five, to or in respect of any goods taken in execution imder the process of a County Court Judge, the claimant may deposit with the bailiff either the amount of the value of the goods claimed, such value to be fixed by appraisement, in case of dispute, to be by such Bailiff paid into Court to abide the decision of the Judge upon such claim, or the sum which the bailiff shall be allowed to charge as costs for keeping pos- session of such goods until such decision can be obtained. 108, § 72. INTEBPLEADEB IN THE COUNTY GOUBTS. 99 and in default of the claimant so doing, the Bailiff shall sell such goods as if no such claim had been made, and shall pay into Court the proceeds of such sale, to abide the decision of the Judge." The Bailiff, on receiving notice of the claimant's claim, Summons, applies to the Registrar of the Court of the district in which the levy was made for an interpleader summons. If the claimant has only given notice of his claim to the goods or monies taken in execution, he will be served with a summons in the form 2 in Appendix C hereto (p. 1 33), and the execution creditor served with a summons in the form 1. If the claimant's claim is in respect of rent, form 3 will be the form of summons served on him. If the claimant has given notice of his claim to damages as well as to the property levied on, then forms 4 and 5 will be the forms of the summonses served on the execu- tion creditor and claimant respectively. If damages are also claimed against the Bailiff, he too will be served with a summons in form 4. The appropriate summonses are served, as is directed by rule 1 of Order XXI. : and the effect of their issue, is as § 31 of the Act of 1867 states, to stay all actions pending in the matter. The claimant must then, within five clear days of the Particulars hearing, deliver to the Bailiff, or leave at the office of the *"^ Registrar, the particulars of his claim and of the grounds claim, thereof, and also particulars of the damages he claims, if any : and whether he claims such damages or not, at all events no subsequent action can be maintained in respect of them. {Death v. Harrison, L. R. 6 Ex. 15.) Possibly the execution creditor may conceive himself to H 2 100 INTEBPLEADEB. have some claim for damages against the Bailiff in respect of neglect or laches on his part in the matter of the execution, whereby he deems himself injured. If so, he must, in accordance with rule 4, serve, five clear days, before the hearing, a notice of such claim on the Bailiff, (See form 12 in Appendix C, p. 139.) With respect to the particulars and grounds of his claim which the claimant is required to deliver five clear days before the return day, there have been several deci- sions, chiefly under the former County Court rules, which however, were, in this respect, practically identical with rule 2 of Order XXL of the Eules of 1875. In Ex parte Tanner (19 L. J. N. S. Q. B. 318), it was held that where the only information in the nature of particulars given by the claimant was the allegation in his notice of claim that the goods taken were, at the time of their seizure, his property, and not the property of the judgment debtor, this was insufficient, and that the County Court Judge was right in refusing to hear any evidence in support of the claim. But in The Queen v. Hichards (20 L. J. Q. B. N. S. 350), it was held that the County Court Judge was wrong in holding particulars which alleged that " the horses seized were assigned to us by an Indenture dated the 28th of March, 1850, and made between Thomas Holbrook, the defendant, of the one part, and ourselves of the other part," insufficient ; and the case was remitted to him to adjudicate upon the merits. So too in The Queen v. Stapylton (21 L. J. Q. B. 8), where the County Court Judge held that particulars (given with the notice of claim), alleging "that by a certain Indenture dated, (fee, and made between the judg- INTERPLEABEB, IN TEE COUNTY COURTS. ' tOl ment debtor of the one part and me of the other part, -the judgment debtor granted and assigned unto me all the household goods, furniture, personal estate and effects, &o., about his houses, brewery, and premises," and claim- ing all such goods as aforesaid mentioned, which had been seized under the writ, were insufficient, the case was remitted to him to adjudicate upon, the particulars being deemed sufficient by the Superior Court. In Ex parte M'Fee (23 L. J. Ex. 57 : 9 Ex. 361), it was Jield that the County Court Judge was wrong in deeming ^particulars insufficient because the claimant was addressed in the particulars as of 24, Elizabeth Street, IsUngton, whereas his true address was 20, Elizabeth Terrace, Islington. In Churchward v. Coleman (L. E. 2 Q. B. 18) it was lield that the County Court Judge was wrong in holding •that the particulars and grounds of claim alleging that the goods and effects in and about the house and premises •o{ the defendant situate at North Camp seized under a writ of execution herein are the property of the claimants the trustees appointed by a deed dated, &c. by which -the judgment debtor conveyed all his estate and effects to the claimants absolutely to be administered for the lienefit of all the creditors as if he had been adjudicated •bankrupt, were insufficient. In remitting this case to the County Court, the Court i(dissenting in this respect from WhiteJiead v. Proctor, q. v. infra), held that it had no jurisdiction under 19 & 20 Vict. c. 108, § 43, to interfere with the County Court .Judge's order as to costs. In Richardson v. Wright (L. K 10 Ex. 307) the Court ■of Exchequer were equally divided "upon the question 102 WTERPLEABBR. ■whether the County Court Judge was right in holding that grounds stating that the goods were the property of the claimant, and were at the time of the seizure in his possession, were insufficient. It is submitted that the grounds of claim were amply sufficient in this case. Payment Where a claim is made against the execution creditor into Court. ^^. ^j^g High Bailiff for damages, then they are em- powered by rule 5 to pay money into Court : the effect of such payment is stated in the rule. Trial. The action then comes on in the ordinary course foi* hearing, and the judgment may be either for the claimant, the execution creditor, or the Bailiff, if he is a party ; or against one or more of these parties. Again, the claimant may succeed as to the goods, but not as to the damage^ or vice versd, Or money may be_ paid into Court, in respect of the damage claimed, and may be sufficient or insufficient. PossiUe According as any one of these possible events occui', judgments, g^^j^ ^^^ ^^ ^^^ ^^^.^ ^^ ^-^^ judgment. (See the forms 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, and 17, post, in Appendix C.) It would seem {Beswich v. Boffey, 9 Ex. 315 : 23 L. J, Ex. 83) that it is not the right course for the County Court Judge to decline to go into the merits merely on the ground that the particulars and grounds of claim are not as full or explicit as they should be, or because they have not been delivered in time. " If the particulars," said Martin, B., " have not been delivered in time, and the opposite party insists upon having five days' notice, a new summons must issue, and the real merits be adjudicated upon, when all the preliminary matters have been com- plied with ; and the Judge has a discretion as to giving costs, like a Judge at Chambers. Indeed it would be INTEBPLEABEB IN THE COUNTY COVETS. 103 absurd to say that through a mere mistake in not properly setting out the particulars of claim, the goods of one person are to be taken to pay the debt of another." In WhiteJiead \. Procter (3 H. & N. 532) the Court remitted the matter to the County Court Judge for re- hearing, where on the grounds of insufficient particulars he had refused to decide the question on the merits, but decided summarily against the claimant. Rule 2, it will be observed, too, provides that with the consent of the parties, or without such consent if the Judge shall so direct, the claim may be tried, although all the provisions of the rule have not been complied with. As to costs, see rule 8. Subject to this they are by Costs. § 31 of the Act of 1867, in the discretion of the Judge : as a rule the unsuccessful party has to pay all the costs, the Bailiff (in this respect dift'ering from the Sheriff in interpleader proceedings in the Superior Courts) getting his primarily out of the fund in dispute if in his hands. If the Bailiff do not however retain his costs out of the amount levied, then he cannot, if the claimant has been ordered to pay the costs, sue the execution creditor for them. {Blore v. Houston, 15 C. B. 266.) Execution for costs can be had against the party ordered to pay them. (See form 18 in Appendix C, p. 143.) A right of appeal (which did not originally exist) from Appeal. the County Court Judge's decision was given by 19 & 20 Vict. c. 108, § 68, which gave it where the money claimed^ or the value of the goods or chattels claimed, or of the proceeds thereof exceeds £20, and also in all cases where the parties agree that the Court shall have jurisdiction. Where the value of the goods, or their proceeds if 104 INTEBPLEADEB, realized, and the amount claimed does not exceed £20, then no appeal lies save by consent of the County Court Judge : 30 & 31 Vict. c. 142, § 13. Interpleader proceedings cannot be removed into the High Court by certiorari. (Ex parte Summers, 18 Jur. 522.) A word may be added as to the proceedings when a defendant, sued by the assignee of a debt or chose in action, ■interpleads, under rules 9 and 10. If the defendant is not only harassed by the conflicting claims, but disputes his liability in toto, he proceeds under rule 9, and a summons in form 19, Appendix C, is issued and served on the assignor. If the defendant does not dispute his liability, but only wishes to get a good discharge for payment of his debt, he proceeds under rule 10, pays the amount due, and costs up to that date into Court, and a summons in form 20 in Appendix C, is issued and served on the assignor. In the first case, at the hearing the questions of (a) liability or no liability 1 and (j3) if liable, to whom ? will be gone into between the plaintiff", defendant, and as- signor, and any counterclaim which the defendant may •?,ve against the plaintiff" will also be gone into. An ■,er will be made according to the result. \ /See forms 21, 22 and 23 in Appendix C.) \'In the latter case, the question whether the assignor or assignee is entitled to the debt or chose in action, will be the only one gone into at the hearing. 1 cb 2, WILL. IV. c. 58. 105 1 & 2 Will. IV. c. 58. An Act to enable Courts of Law to give relief against adverse claims made upon i^ersons having no interest in the subject of such claims. [20th October, 1831. J Wheebas it often happens that a person sued at law for the reooyery of money or goods wherein he has no interest, and which are also claimed of him by some third party, has no means of relieving himself from such adverse claims but by a suit in equity against the plaintiff and such third person, ustially called a bill of interpleader, which is attended with expense and delay ; for remedy thereof be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal and Commons in this present Parliament assembled, and by fhe authority of the same, that upon Upon appli- application made by or on the behalf of any defendant "i^''™ ^^ * sued in any of his Majesty's . Courts of Law at West- in an action minster, or in the Court of Common Pleas of the County °? assump- Palatine of Lancaster, or the Court of Pleas of the County statingthat Palatine of Durham, in any action of assumpsit, debt, ^Jj® "S*?* '"^ detinue or trover, such application being made after de- matter is in claration, and before plea, by affidavit or otherwise, shewing ^ ^^'^^^ that such defendant does not claim any interest in the Coart may subject-matter of the suit, but that the right thereto is ^^^"^ ^"<='' 1 • 1 1,1 1 •. third party Claimed or supposed to belong to some third party who to appear lHO INTEBPLEABEB. and main- tain or reliuquisli his claim, and in the meantime staj pro- sucli action. Judgment and deci- sion to be final. If such third party shall not appear, &c., the Court may 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 sliall be lawful for the Court, 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 meantime 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 attornies, 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. § 2. And be it further enacted, that the judgment in any such action or issu.e as may be directed by the Court or judge, 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. § 3. And be it further enacted, that if such third party shall not appear upon such rule or oi-der to maintain or relinquish his claim, being duly served therewith, or shall neglect or refuse to comply with any rule or order to be 1 cfc 2 WILL. IV. c. 58. 107 made after appearance, it shall be lawful for the Court bar his or judge to declare such third party, and all persons ^^^inst the claiming by, from, or under him, to be for ever barred original from prosecuting his claim against the original defendant, ^ ^^ ™ • his executors or administrators ; saving nevertheless the right or claim of such third party against the plaintiif ; and thereupon to make such order between the defendant and the plaintiflF, as to costs and other matters, as may appear just and reasonable. § 4. Provided always, and be it further enacted, that Proviso as no order shall be made in pursuance of this Act by 8' i^ade'wa, single judge of the Court of Pleas of the said County single Palatine of Durham who shall not also be a judge of''" ^^' one of the said Courts at Westminster, and that every order to be made in pursuance of this act by a single judge not sitting in open Court shall be liable to be rescinded or altered by the Court in like manner as other orders made by a single judge. § 5. Provided also, and be it further enacted, that if If a judge upon application to a judge, in the first instance, or in j^^tter any later stage of the proceedings, he shall think the more fit for m.atter more fit for the decision of the Court, it shall be ^^ ^.j^^ lawful for him to refer the matter to the Court ; and Court, he thereupon the Court shall and may hear and dispose of ^^ ^^ ^^ the same in the same manner as if the proceeding had originally commenced by rule of Court, instead of the order of a judge. § 6. And whereas difl&culties sometimes arise in the For relief execution of process against goods and chattels, issued °^ j'"i'i'*^ by or under the authority of the said Courts, by reason officers in of claims made to such goods and chattels by assignees ^^^™*'<"' ° •' ° of process of bankrupts and other persons, not being the parties against 108 INTERPLEADEli. goods and chattels. Kules, orders, &c. , made in purfcuance ■of this Act may be entered of record, and made evidence. against whom such process has issued, whereby sheriffs and other officers are exposed to the hazard and expense of actions ; and it is reasonable to afford relief and pro- tection in such cases to such sheriffs and other officers ; be it therefore further enacted, that when any such claim, shall be made to any goods or chattels taken or intended to be taken in execution under any process, or to the proceeds or value thereof, it shall and may be lawful to and for the Court from which such process issued, upon application of such sheriff or other officer, made before or after the return of such process, as well before as after any action brought against such sheriff or other officer, to call before them, by rule of Court, as well the party issuing such process as the party making such claim, and thereupon to exercise, for the adjustment of such claims and the relief and protection of the sheriff or other officer, all or any of the powers and authorities hereinbefore contained, and make such rules and decisions as shall appear to be just, according to the circumstances of the case : and the costs of all such proceedings shall be in the discretion of the Court. § 7. And be it fiu-ther enacted, that aU rules, orders, matters and decisions to be made and done in pursuance of this Act, except only the affidavits to be filed, may, togeth* with the declaration in the cause (if any), be entered of record, with a note in the margin expressing the true date of such entry, to the end that the same may be evidence in future times, if required, and to secure and enforce the payment of costs directed by such order; and every such rule or order so entered shall have the force and effect of a judgment, except only as to becoming a charge on any lands, tenements, or heredi- 1 <£• 2 WILL. ir. c. 58. io:> taments ; and in case any costs shall not be paid within Costs. 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 Jieri facias or capias ad satisfaciendum, adapted to the case, together with the costs of such entry," and of the execution, if by fieri facias ; and such writ and writs Writs. may bear teste on the day of issuing the same, whether in term or vacation ; and the sheriff or other officer Sheriff's 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. § 8. And whereas by a certain Act made and passed Upon any in the last session of Parliament, intituled " An Act to 36^*'°" improve the Proceedings in Prohibition and on Writs on 1 Wm. IV. Mandamus," it was among other things enacted, that ^j^j^ ^!? it should be lawful for the Court to which application the Court may be made for any such writof mandamus as is therein g„4''irw^° in that behalf mentioned, to make rules and orders and make calling not only upon the person to whom such writ may ^^°^ .^^ be required to be issued, but also all and every other by or men- person having or claiming any right or interest, in or to ijj°°^? l" the matter of such writ, to shew cause against the issuing of such writ and payment of the costs of the application, and upon the appearance of such other person in com- pliance with such rules, or, in default of appearance after service thereof, to exercise all such powers and authorities, and to make all such rules and orders applicable to the case, as were or might be given or mentioned by or in the Act passed during that present session of Parliament for giving relief against adverse claims made upon persons having no interest in the subject of such claims j and 1 1 INTERPLEADER. whereas no such Act was passed during the then present session of Parliament, be it therefore enacted, that upon any such application as is in the said Act and herein- before mentioned, it shall be lawful for the Court to exercise aU such powers and authorities, and make all such rules and orders applicable to the case, as are given or mentioned by or in this present Act. 1 & 2 Vict. c. 45. An Act {inter alia) to extend the Jurisdiction of the Judges of tlie Superior Courts of Common Law, Any judge § 2. Whereas by another Act passed in the second SrJsTOh' y^^'-' ^'^ ^^^ reign of his late Majesty King WiUiam the powers for Fourth, intituled " An Act to enable the Courts of Law of Sheriff *° ^^^ relief against adverse claims made upon persons &c., as may having no interest in the subject of such claims," pro- oJl™*"^ vision is made for the relief of sheriflfs and other officers "Wm. IV. concerned in the execution of process issued out of any be exel- ^' °^ ^^® Majesty's Courts of Law at Westminster or of the cised by tbe Court of Common Pleas of the County Palatine of Lan- conrte? caster, or the Court of Pleas of the County Palatine of Durham, against goods and chattels by reason of claims made to such goods and chattels, but such relief can only be given by rule of Court : and whereas it is ex- pedient that a single judge should possess the power of giving relief in that respect, be it further enacted that it shall be lawful for any judge of the said Courts of Queen's Bench, Common Pleas, or Exchequer, with respect to any such process issued out of any of those Courts, or for any judge of the said Court of Common 8 cO 9 VICT. c. 109. Ill Pleas of the County Palatine of Lancaster or Court of Pleas of the County Palatine of Durham (being also a judge of one of the said three Superior Courts), with respect to process issued out of the said Courts of Lancaster and Durham respectively, to exercise such powers and authorities for the relief and protection of the sheriff or other officer as may by virtue of the said last-mentioned Act be exercised by the said several Courts respectively, and to make such order therein as shall appear to be just, and the costs of such proceedings shall be in the discretion of such judge. 8 & 9 Vict. o. 109. An Act to amend the Law concerning Games and Wafers. § 19. And whereas many important questions are now Proceed - tried in the form of feigned issues, by stating that a wager ^^ ™^^^ was laid between two parties interested in respectively issue maintaining the affirmative and the negative of certain abolished. propositions, but such questions may be as satisfactorily tried without such form, be it therefore enacted, that in every case where any court of law or equity may desire to have any question of fact decided by a jury, it shall be lawful for such Court to direct a writ of summons to be sued out, by such person or persons as such Court shaU think ought to be defendant or defendants therein, in the form set forth in the second schedule to this Act annexed, with such alterations or additions as such Court may think proper: and thereupon all the proceedings shall go on and be brought to a close in the same manner as- is now practised in proceedings under a feigned issue. 112 INTEBPLEABEB. Schedule 2. In the Court of Queen's Bench [" Common Pleas " to the end that the same may be evidence in evidence, 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 in the Superior Courts of Common Law. 36 & 37 Vict. o. 66 (S. C. J."*Aot, 1873.) Assignment § 25. Subsect. 6. Any absolute assignment, by writing and chMes ^^^^^ *® ^^^^ °^ *^® assignor (not purporting to be by in action, way of charge only), of any debt or other legal chose in 36 cfe 37 VICT, a 66, § 25. 115 action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to • have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed), to pass and transfer the legal right to such debt and chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor : 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 anyone claiming under him, or of any other opposing and 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 and in conformity with the provisions of the Acts for the relief of trustees. EuLBS OF S. C. 1875, Order I. Rule 2. With respect to interpleader, the Inter- procedure and practice now used by Courts of Common ^^.^^g^jg Law under the Interpleader Acts, 1 & 2 WilL IV. c. 58, preserved. and 23 & 24 Vict. c. 126, shall apply to all actions and all the divisions of the High Court of Justice, and the application by -a defendant shall be made at any time after being served with a writ of summons and before delivering a defence, I 2 APPENDIX. APPENDIX A. FORMS IN STAKEHOLDER'S INTERPLBADER. FOBM 1, Inteepleadeb Sttmmons by Stakeholdbb, In the High Court of Justice, DiviBion. 18 , No. Between Plaintiff, and Defendant, Claimant. Let all parties concerned attend the Master in Chambers on day, the day of , 18 , at o'clock in the noon, on the hearing of an application on the part of that the plaintiff and the claimant appear and state the nature and particulars of their respective claims to the monies the subject matter of this action, and maintain or relinquish the same and abide by such order as may be made hereon, and that in the meantime all further proceedings be stayed. Dated the day of ,1880, This summons was taken out by of , solicitor for > To A. B. the said plaintiff, and to E. F. the said claimant. 118 INTEBPLEADEB. FOEM 2. Dependant's Affidavit in support of his Summons. In the High Court of Justice, Division, 1880, A. No. 100. Between Plaintiff, and Defendant. 1, , of {here insert address], the defendant in the above action, make oatli and say as follows : — 1. The writ of summons herein was issued on the day of , 1880, and was served on me on the day of 1880. I have not yet delivered a statement of defence herein. 2. The action is brought to recover The said* in my possession, but I claim no interest therein. 3. The right to the said subject-matter of this action has been and is claimedf by one , whof ■ 4. I do not in any manner collude with the said , or with the above-named plaintiff, but I am ready to bring into Court or to pay or dispose of the said ' in such manner as the Court may order or direct. Sworn at , the day of , 1880. Before me • This affidavit is filed on behalf of the • . Form 3. . Affidavit by Claimant in support of his Claim. [Title, S;o., as inform 2.] I, E. F., of , make oath and say as follows : — ■ 1, I have read the affidavit of the defendant sworn in this action on , and I say that the therein mentioned is my property and I claim it as such, 2. [Here state Iriefly the natwe of the claimant's claim to the property.'] Sworn, [&c., as at end of form, 2.] • "Is" or "are." t H claim in writing make the writing an exhibit. 4: State expectation of suit or that he has already sued. APPENDIX A. 119 FOHM i. Affidavit of Sbbvicb of Summons. In the High Covirt of Justice, Division. Between A. B., Plaintifi. and CD., Defendant, and E. F., Claimant. I, , of , solicitor for the above named , make oath and say as follows : — I did on the day of , 1880, before the hour of jn the noon, serve the claimant E. F. in this action with a true copy duly stamped of the summons hereto annexed, marked A, by leaving it at the of the said E. F., situate , with there. [Iftlie swmmons be served personally mf, the claima/nt, state it so.'] Sworn, [&c., as at end of form 2.] FOKM 5. Oedek dismissing Defendant's Application foe Intek- FIjEADEB. In the High Court of Justice, 1880, A. No. 100. Division. , Master in Chambers. Between A. JB., Plaintiff, and C. D., Defendant, and K F., Claimant. Upon hearing , and upon reading the affidavit of , filed the day of , 1880, and It is ordered that the application of be dismissed * with costs to be taxed and paid by the to the . Dated the day of , 1880. * If the dismissal h^ with costs, add these words, 120 INTEBPLEABER. FOEM 6. Oedee Baeeing the Claimant. In the High Court of Justice, Division. 1880, A. No. 100. , Master in Chambers. Between Plaintiff, and Defendant, and Claimant. Upon hearing , and upon reading the affidavit of ' filed the day of , 1880, and It is ordered that the claimant be barred, that no further proceedings be taken in the action by the above-named plaintiff, against the above-named defendant, that the monies [describe subject-matter of litigation] be paid over by the above-named de- fendant to the above-named plaintiff, and that the costs of this application be , Dated the day of , 18 . FOEM 7. Ohdeb substituting Claimant as Dependant in the Action. In the High Court of Justice, Division. 18 , No. . , Master in Chambers. Between , Plaintiff, and Defendant, and Claimant. Upon hearing , and upon reading the affidavit of , filed on the day of , 18 , and It is ordered that the above-named claimant be substituted as defendant in this action, in lieu of the present defendant, and that the costs of this application be Dated the day of , 18 . APPENDIX A. 121 FOEM 8. Obdbr dikbctutg Issue between Plaintiff and Claimant. {T^tXe as inform 7). Upon hearing , and upon reading the affidavit of , filed on the day of , 18 and It is ordered that all further proceedings in this action against the defendant be stayed, and that the said plaintiEE and the said [plaimimt^ be restrained from proceeding against the said defendant to recover the for which this action is brought. And it is further ordered that the said defendant do retain possession of the until further order [or, forthwith pay into the hands of one of the Masters of this Court the said & ]. And it is further ordered that the plaintiff and tho said « claimant, proceed to the trial of an issue in the High Court of Justice, in which the plaintiff shall be plaintiff, and the {_clmmanf] defendant, and that the question to be tried shall be whether [here state the question at issvie]. And it is further ordered that this issue be prepared and de- livered by the plaintiff therein within from this date, and be returned by the defendant therein within days, and be tried at And it is further ordered that the question of costs, and all further questions, be reserved until after the trial of the said issue. Dated the day of , 18 . Form 9. OEDEE StTMMAEILT DETBEMININCJ THE MATTEE. In the High Court of Justice, Division. 18 , No. , , Master in Chambers. Between Plaintiff, and Defendant, and Claimant. The plaintiff and the claimant having requested and consented that the merits of their claims be disposed of and determined in a 122 INTEBPLEADMB. Bummary maimer, now upon hearing , and upon reading the affidavit of , filed the day of , 18 , and It is ordered that And that the costs of this application be . Dated the day of , 18 . ' FOEM 10. FoKM OF IssnE. See the form of issue in sherifE's interpleader ; [post, fomi 9, in Appendim -B.] With the slight necessary alterations, that form' is equally available for an issue in stakeholder's interpleader. Form 11. , Okdbk dikecting Speciai/ Case, [Heading as inform T.J Upon hearing , and upon reading the affidavit of , filed on the day of , 18 , and It is ordered that all further proceedings in this action against the defendant be stayed, and that the said , the plaintiff, and the said , the claimant, be restrained from proceeding against the said defendant to recover the for which this action is brought. And it is further ordered that the said , the defendant, do retain possession of the until further order [or forthwith pay into the hands of one of the Masters of this Court the said And it is further ordered that the question as to the right to the said goods [ormonies], as between the plaintiff and the claimant, be tried by means of a special case to be agreed upon between the said plain- tiff and the said claimant, such special case to be prepared by the plaintiff and submitted to the said claimant or his solicitor within days, and returned approved by the said claimant withiq days. APPENDIX A. 123 And that any question that may arise as to the form of such . case be submitted to and determined by the Master sittiag at Chambers. And it is further ordered that the question of costs and all further questions be reserved untU after the hearing of the said special case. Dated the A&j of , 18 • FOEM 12, FlBEI TACIAS OS OEDBE TOK COSTS, In the High Court of Justice, DiTision, 18 ,'So. , Between Plaintiff, and . Defendant, and Claimant, Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to the sherifE of , greeting : We command you that of the goods and chattels of , in your bailiwick, you cause to be made the sum of £ , for certain costs which by an order of our High Court of Justice, dated the day of , 18 , weie ordered to be paid by the said to , and which have been taxed and allowed at the said sum, and interest on the said sum at the rate of S,i per centum per annum, from the day of , 18 , and that you have the said sum and interest before us in our said Court, immediately after the execution hereof, to be rendered to the said . And in what manner you shall have executed this our writ make appear to us immediately after the execution hereof- And have there then this writ. Witness, Hugh Mc Calmont, Earl Cairns, Lord High Chancellor of Great Britain, the day of , 18 , Levy £ ,and £ for costs of execution, &c., and also interest on £ at £4 per centum per annum from the day 124 INTEBPLEABER of 1 18 , until payment, besides slierifE's poundage, officers' fees, costs of levying, and aU other legal incidental expenses. This writ was issued by ,of , agent for ,of , solicitor for the . The is a , and resides at , in your bailiwick. FOEM 13. For a form of the record, when proceedings have been entered thereon pursuant to § 7 of the Act of 1831, and § 18 of the C. L. P. Act, 1860, see Chitty's Forms, (llth Edition), p. 670. The entry of proceedings on record under these sections is now very seldom resorted to. APPENDIX B. FOEMS m SHEEIFF'S INTEEPLEADEE. FOEM 1. SHEiaFP'S iNTEEPtBADEB SUMMONS. In the High Court of Justice, Division. 18 , No. . , Master In Chambers, Between Plaintiff, and Defendant, and Claimant. Let all parties concerned attend the Master in Chambers on day, the day of ,18 , at o'clock in the noon, on the hearing of an application on the part of the sheriff of that the plaintifi and the claimant appear and state the nature and par- ticulars of their respective claims to the goods and chattels seized by the above-named sherifE , under the vmt oi fieri facias issued in this action, and maintain or relinquish the same and abide by such order as may be made herein, and that in the mean- time aU further proceedings be stayed. Dated the day of , 18 . This summons was taken out by , of , solicitor for . To [tJie plaintiff], and [tTis claimant or claimants]. 126 INTERPLEADER. FOEM 2. Sheeiff's Affidavit in Suppoet op Summons. In the High Court of Justice, Division. 18 . No. , / Between .....,, Plaintiff, and Defendant, Claimant. I, , of , officer to the sheriff of , make oath and say as follows. 1. On the day of last, I took possession of certain goods and chattels in the house of the above-named defendant, situate at , in the county of , under a writ (tf fieri faciag issued out of the above-named Division of the High Court in this action, directed to the said sheriff, and commanding him to cause to be levied of the goods and chattels of the above-named defendant £ , and interest thereon, which sums the above named plaintiff had re- covered in this action against the said defendant, and endorsed to levy the whole besides sheriff's] poundage, officers' fees, and other expenses of execution, and also by virtue of a warrant of the said sheriff granted on the said writ" and to me directed, 1 still re- main in possession of the said goods and chattels as such sheriff's officer. 2. On the day of , I was served with a written notice, of which the following is a eopy[A«r^ copij the'claimant's notice. If notice not in mriUng state its effect shortly tut accurately?^ 3. I make this application solely on my own behalf as officer to the said sheriff, and at my own expense and for my own indemnity. Neither the said sheriff nor myself in any way collude with the said claimant or the said plaintiff. Sworn \J;c. as inform, 2.] Forms 3, 4, & 5. The Orders dismissing the sheriff's application, 'barring the .claimant, and summarily determining the matter by consent, will be similar to forms 5, 6, and 9 in ordinary interpleader [see these ante,' in Appendix A."], mutatis vi/utandis. APPENDIX B. 127 FOBM 6. Oedee directing ISStTB. ' In the High Court of Justice, Division. 18 . No. , Master in Chambers. Between Plaintiff. and Defendant. and between Claimant. and the said , execution creditor, and the sherifE of Respondents. Upon hearing , and upon reading the affidavit of , filed the day of , 18 , and It is ordered that the said sherifE proceed to sell the goods seized by him under the Vfrit of fieri facias issued herein, and pay the net proceeds of the sale, after deducting the expense thereof, into Court in this cause, to abide further order herein. And it is further ordered that the parties proceed to the trial of an issue in the High Court of Justice, in which the said claimant shall be the plaintiff, and the said execution creditor shall be the defendant, and that the question to be tried shall be whether at the time of the seizure by the sherifE the goods seized were the property of the claimant as against the execution creditor. And it is further ordered that this issue be prepared and delivered by the plaintifE therein vfithin from this date, and be returned by the defendant therein within days, and be tried at And it is further ordered that the question of costs and all further questions be reserved until after the trial of the said issue, and that no action shall be brought against the said sheriff for the seizure of the said goods. Dated the day of , 18 , 128 INTEBPLEADEB. FOEM 7. Anotheb Oedek dieecting Issue. [^Heading as in No. 6.] Upon hearing , and upon reading the affidayit of , filed the day of , 18 , and It is ordered that upon payment of the sum of £ into Court by the said claimant within from this date, or upon his giving within the same time security to the satisfaction of one of the Masters of the Supreme Court for the payment of the same amount by the said claimant, according to the directions of any order to be made herein, and upon payment to the above-named sherifiE of the possession money from this date, the said sheiifE do withdraw from the possession of the goods seized by him under the writ oi fieri facias herein. And it is further ordered that unless such payment be made or security given within the time aforesaid, the said sherifiE proceed to sell the said goods, and pay the proceeds of the sale, after de- ducting the expenses thereof, and the possession money from this date, into Court in the cause, to abide further order herein. And it is further ordered that the parties proceed to the trial of an issue [^'C. S^o, in exactly the same terms from this point as form 6.] Dated the day of ,18 Form 8. Another Oedeb dieecting an Issue. \_Heading as imform 6.] Upon hearing , and upon reading the affidavit of filed the day of , 18 , and It is ordered that upon payment of the sum of £ into Court by the said claimant, or upon his giving security to the satisfaction of one of the Masters of the Supreme Court for the payment of the same amount by the claimant, according to the directions of any order to be made herein, the above-named sherifiE withdraw from the possession of the goods seized by him under the writ of JUri facias issued herein. And it is further ordered that in the meantime and until such APPENDIX B. 129 payment made or security given, the slierifi continue in possession of the goods, and the claimant pay possession money for the time he so continues, unless the claimant dajire the goods to be sold by the sheriff, in which case the sheriff is to seU them, and pay the proceeds of the sale, after deducting the expenses thereof and the possession money from this date, into Court in this cause to abide further order herein. And it is further ordered that the parties proceed to the trial of, an issue, \_^o. ^c. m the same terms from tMs point as form 6]. Dated the day of ,18 . FOEM 9, INTEEPLEADEB ISSUE.* In the High Court of Justice, DiTision, Between Plaintiff, and Defendant. Interpleader issue Delivered the day of , by , solicitor for the above- named plaintiffs, pursuant to a^i interpleader order of [the Honour- able Mr. Justice ], dated The plaintiff, A. B. affirms, and the defendant, C. D. deniesthat the goods \Tiere desoriie them"] seized, on the day of , in execution by the sheriff of , under a writ of fieri fadag tested the day of , and issued out of the Division of Her Majesty's High Court, of Justice, directed to the said sheriff for the having of execution of a judgment of that Court, recovered by the said A. B. in an action at his suit against M. N. were, or some part thereof was, at the time of the said seizure, the property of the said A. B. as against the said C. B. And it has been ordered by the Honourable Mr. Justice , [or by Master Smith], that the said question shall be tried by a jury, and that the said matter should be tried at , Therefore let a jury come, &c. * This form of issue can 'vrith slight variations he applied to the case of an issue ia interpleader at the suit of an ordinary person, as well as at that of a sheriff. 130 INTEBPLEABEB. FOBM 10. Oedee directing Special Cases. \Headmg as in, No. 6.] \The order mill first deal mith the interim disposition, of the pr(yperty in dispute, and any one of the three courses adopted respectively in forms 6, 7, amd 8, moAj he here adopted. The order mUl then proceed thus : — ] And it is further ordered that the question as to the right to the said goods [or monies], as between the claimant and the plaintiff, be tried by means of a special case, to be agreed upon between the said claimant and the said plaintiff, such special case to be prepared by the claimant and submitted to the said plaintiff, ■within days, and returned approved by the said plaintifE within days. And that any question that may arise as to the form of such case be submitted to and determined by the Master sitting at Chambers. And it is further ordered that the question of costs and all further questions be reserved until after the hearing of the said special case, and that no action be brought against the said sheriff for the seizure of the said goods. Dated the day of , 18 . FOEM 11. pEDEB SUMMAEILY DISPOSING THE MATTEE TJNDEE C. L. P. Act 1860, § 13. [Beading as in No. 6.] Upon hearing , and upon reading the affidavit of , filed the day of , 18 , and It is ordered that the above-named sheriff proceed to sell enough, of the goods seized under the writ of fieri facias issued in this action to satisfy the expenses of the said sale, the rent (if any) due, the claim of the claimant, and this execution. And it is further ordered that out of the proceeds of the said pale (after deducting the expenses thereof and rent, if any) the said sheriff pay to the claimant the amount of his said claim, and. APPENDIX B. 131 to the execution creditor the amount of his execution, and the residue, if any, to the defendant. And it is furthpr ordered that no action be brought against the said sheriff, and that the costs of this application be -, Dated the day of , 18 , FOEM 12. For the form of the record, when the proceedings have been entered thereon pursuant to § 7 of the Act of 1831, and § 18 of the C. L. P. Act, 1860, see Chitty's Forms (11th Edition), p. 677. Form 13. For the/oi'OT of an interpleader 'bond, the usual security required from the claimant, when he does not wish the goods seized to be sold, and wishes the sherifE to withdraw from possession of them, see Chitty's Forms (11th Edition), p. 678, . FOEM 14. For form of a fieri facias for costs on an order, see ante. Appendix A. p. 123,/ne heading as No. 13.] It is this day adjudged, touching the claim of JS. F. to certain goods and chattels {or monies, &c.] taken in execution in this action, and for damages arising out of the said execution, and which E. F. claimed against the High Bailiff of this Court, and in respect of which damages hath paid into Court the sum of S, , that the said goods and chattels [or monies, &c., or part thereof, ^ecifywig them or W] are the property of E, F., but that the said sum paid into Court is sufficient to satisfy all damages arising out of the said execution. And it is ordered that the execution creditor do pay to the registrar of this Court the sum of & for costs for the use of F. F., and that F. F, do pay to the registrar of this Court the sum of £ for costs for the use of the High BailifE, on or before the day of , 18 . To , the Execution Creditor, and to E. F. FOBM 16. Obdeb on an Intebpleadeb Summons whebe both Goods AND Damages abb claimed, and Money is paid into Coubt in bbspect of the latteb, and the Claim to the Goods is established, and the Money paid into Court is adjudged insufficient. \Sa/me lisading as No, 13.] It is this day adjudged, touching the claim of E. F. to certain goods and chattels [or monies, &c.] taken in execution in this action, and for damages arising out of the said execution, and which E. F. claims against- the High Bailiff, and in respect of 142 INTBBPLEADER. which damages was paid into Court the sum of & , that the said goods and chattels [oj* monies, &c.] are the property of the said K F., and that the said sum of £ paid into Court is not sufficient to satisfy the damages arising out of the said execution, and that the said K F. is entitled to recover the further sum of £ for damages from the High Bailiff. And it is ordered that the execution creditor do pay to the registrar of this Court,Jon or before the day of > 18 , the sum of & for costs for the use of the said E. F. and that the High Bailiff do pay to the registrar of this Court, on or before the last-mentioned day, the said further sum of & for damages, and also the sum of & for costs, for the use of the said F. F. To , the Execution Creditor, and the High Bailiff, FOBM 17, OEDEE on an iNTEEPtBADEE SUMMONS BY AN BXECtTTION Cbeditoe against a High Batlipf eoe Damages, and wheeb the high bailiff pats monet into coubt. [Same lieading as No. 13.] It is this day adjudged, oonoeming the claim of the execu- tion creditor in this cause against the High Bailiff of this Court for damages arising out of an execution in this cause, in which process issued from this Court at the instance of the said , the execu- tion creditor, directing the said High Bailiff of this Court to levy the sum of & of and from the goods and chattels of [tTie execution deltor], and in respect of which damages the High BailfE hath paid into Court the sum of & , that the sum paid into Court is sufficient to satisfy all damages arising out of the said execution [<»• that the sum paid into Court is not sufficient to satisfy all damages arising out of the said execution, and that the said , the execution creditor, is entitled to recover the further sum of £ for damages from the High Bailiff.] And it is ordered that the said , the execution creditor, do Jiay to the registrar of this Court, on or before the day of ,18 , the sum of £ for costs for the use of the High Bailiff lor that the High Bailiff do pdy to the registrar of this Court APPENDIX a 143 the said further sum of £ for damages, and also the further sum of £ for costs, for the use of , the execution creditor.] To , the Execution Creditor [or to the High BailifE of this Coui-t.] Poem 18. ■WAKBAUT of EXECtTTION AGAINST THE GOODS OP CLAIMANT. Whereas at a Court holden on the day of , 18 , , the plaintiff, recovered against the defendant the sum of £ for debt [or damages] and for costs : inTr-rf And whereas the defendant, by an order of the Court, was g- " ordered to pay the same to the registrar of this Court : 8 jj^g^ And whereas default having been made to the said order, an execution issued against the goods of the defendant, under which certain goods and chattels were seized, in respect of which £J. F., of, Sec, made claim, and which claim was heard and decided upon at a Court held at , on the day of , 18 , and it was adjudged that the goods so seized under the said execution were the property of the defendant [or that certain rent alleged by the said S. F., of, &c., to be due to him was not so due] : And it was ordered that the costs of that proceeding, amount- ing to the sum of £ , should be paid by the claimant to the registrarof the said" Court, on or before the • day of ,18 : And whereas default has been made in payment according to the said last-mentioned order : These are therefore to require and order you forthwith to make and levy by distress and sale of the goods and chattels of the said claimant wheresoever they may be found within the district of this Court (excepting the wearing apparel and bedding of the said claimant or his family, and the tools and implements of his trade, if any, to the value of five pounds), the sum stated at the foot of this warrant, being the amount due to the plaintiff under the said order, including the costs of this execution, and also to seize and take any money or bank notes (whether of the Bank of England or of aiiy other bstnk), and any cheques, bills of ex- change, promissory notes, bonds, specialties, or securities for moiiey, of the claimant which may there be found, or such part or so touch thereof as may be sufficient to satisfy this execution, and the costs of making and executing the same, and to pay what you 144 INTEBTLEABEB. shall have so levied to the registrar of this Court, and make return of what you have done under this warrant, immediately upon the execution thereof. Given under the seal of the Court this day of , 18 . By the Court, Eegistrar of the Court. To the High Bailiff of the said Court, and others the bailifEs thereof. £ s. d. Costs adjudged Poundage for issuing this warrant Total amount to he levied . . . , Notice. — The goods and chattels are not to be sold until after the end of five days next following the day on which they were seized, unless they he of a perishable nature, or at the request of the said claimant. 19 & 20 Application was made to the registrar for this warrant at Vict. c. minutes past the hour of in the noon of the day 108, §46 of fi8 . FOBM 19. Summons where a. Defendant sued bt an Assignee has had koticb that the assignment is disputed by the assigkoe. No. of Plaint. In the County Court of , holden at Between A. B., Plaintiff, [^Address, Descri^tion.'\ and C. B., Defendant. \^Address, Description.^ "Whereas the defendant in this action has had notice from you that you dispute the assignment of the subject matter in dispute between the plaintiff and defendant in this action [or that you claim the subject matter of this action] : You are therefore summoned to appear at a Court to be holden at on the day of at the hour of in the noon, when the dispute [or claim] between you and the APPENDIX a I44>c plaintiff will be determined, and judgment be given determining the rights and claims of the plaintiff, the defendant, and yourself. Dated this day of 188 . To M F., of (?i£re insert address and description of tJie person, to be tumTnoned). FOBM 20. Summons wheee a Dependant sded by an Assignee has HAD Notice that the Assignment is disputed by the ASSIGNOB, AND HAS PAID DbBT AND COSTS INTO COUET. (JSeading as in Form 20.) Whereas the defendant has had notice that you dispute the assignment of the subject matter in this action. And whereas he has paid into Court the sum of £ , being the amount claimed by the action, and the sum of £ for costs. This is to gire you notice that you must appear at a Court to be holden on the day of at the hour of in the noon, when the Court will adjudicate. FOEM 21. Oedee whebe Assignment is Invalid. No. of Halnt* In the County Court of , holden at Between A. B., PlaintiflF, C. J)., Defendant, and .E F., made party by summons, dated the day of It is this day adjudged, touching the dispute to the assignment of the subject matter of this action to the plaintiff, that there is no such assignment as alleged, and that the said F. F. do recover against the plaintiff the sum of & for costs, and that the defendant do recover against the plaintiff the sum of £ for costs. It is further adjudged that the said E. F. do recover against the defendant the siun of £ for debt, and the sum of £ for costs. It is ordered that the plaintiff do pay the sum of £ , and the sum of £ to the registrar on, &c, K • U4b APPENDIX a And it i8 farther ordered that the defendant do pay the sum of ', .to the Begistrar, &c. FOEM 22. Ordeb wheeb Assignment is Valid. (_Seadmg as in Form 21.) It IS this day adjudged, touching the dispute to the assignment of the subject-matter of this action to the plaintifi, that the said assignment is good, and that the plaintifi do recover against .E F. the sum of £, for costs, and that the defendant do recover against the said F. F. the sum of £ for costs. It is further adjudged that the plaintifE do recover against the defendant the sum of S, for debt, and the sum of & tor costs. It is ordered that F. F. do pay the sum of & , and the sum of £ to the registrar of the Court on the day of And it is further ordered that the defendant do pay the sum of £ to the Begistrar on the day of [or by instalments of for every days, the first instalment to be paid on the day of 18 .] Form 23. Order where Assignment! is Invalid, and Dependant piles a Countbr-Claim against Plaintipp. (Heading as in Form 21.) It is this day adjudged, touching the assignment of the subject- matter of this action to the plaintifi, that there is no such assign- ment as alleged, and that the counter claim of S, against the plaintifi by the defendant is sustained. It is adjudged that the assignor do recover against the defen- dant the sum of & for debt, together with the sum of & ton costs. It is further adjudged that the defendant do recover against the plaintifi the sum of £ in respect of his counter claim, and the sum of £ for costs. It is ordered that the defendant do pay the sum of £ together with the sum of £ to the registrar on, &c. It is further ordered that the plaintifi do pay the sum of £ and the sum of £ to the registrar, on, &e. ATTACHMENT OF DEBTS. ATTACHMENT OF DEBTS. INTEODUCTOEY. There was no way, previous to the passing of the Common Law Procedure Act, 1854, by means of which a judgment creditor could obtain payment of his debt, from parties who were indebted to the judgment debtor ; yet far more than the amount of the judgment debt might be due to the judgment debtor from such parties : and they would probably be quite indifferent to whom they paid the debt, so long as they could get a good discharge for it. Such being the state of things, the Common Law C. L. P. Procedure Act, 1854, in § 60—67, provided a machinery^"*' ^®^^- by means of which a judgment creditor might ascertain what debts were due to his judgment debtors from third parties, and then proceed to attach them, and so ultimately obtain payment of them. The practice was further developed by the Common C. L. P. Law Procedure Act, 1860, sections 29 & 30; and by these ^°*' ^^^''• provisions the practice was regulated at Common Law till the passing of the Judicature Act, 1875. In Chancery, the power to attach debts did not exist. (Eorshy v. Cox, L. K. 4 Ch. 92.) L 2 148 ATTACHMENT OF DEBTS. Rules of Now, however, under Order 45 of the Eules of the S C 18/5 Order 45. ' S. C. of 1875, the practice of attachment applies to all divisions of the High Court ; and the several rules of the order deal with the practice in attachment. These rules are, however, substantially the same as the provisions of the Common Law Procedure Acts, 1854 and 1860 ; so that the decisions under those Acts are applicable to the present practice. CHAPTER I. Attachment of Debts in the High Court op Justice. The provisions of Order XLV. are as follows : — 1. Where a judgment is for the recovery by, or paymen Of debts. to any person of money, the party entitled to enforce it may apply to the Court or a Judge, for an order that the judgment debtor be orally exaniined as to whether any and what debts are owing to him, before an of&oer of the Court, or Such other person as the Court or a Judge shall appoint ; and the Court or Judge may make an order for the examination of such judgment debtor, and for the production of any books or documents. 2. The Court or a Judge may, upon the ex parte Ex parte application of such judgment creditor, either before or ^ loation after such oral examination, and upon affidavit by himself or his solicitor stating that judgment has been recovered and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, order that all debts owing or accruing from such third person [hereinafter called the garnishee] to the judgment debtor shall be attached to answer the judgment debt ; and by the same and any subsequent order it may be ordered that the garnishee shall appear before the Court or a Judge or an officer of 150 ATTACHMENT .OF DEBTS. Notice to garnishee. BxecH- tion oil garnishee. Garnishee may dis- pute. ThirJ party to appear. Power of Court as to third iiaiiy. the Court, as the Court or a Judge shall appoint, to shew cause why he should not pay the judgment creditor the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debtor. 3. Service of an order that debts due or accruing to the judgment debtor shall be attached, or notice thereof to the garnishee, in such manner as the Court or Judge shall direct, shall bind such debts in his hands. 4. If the garnishee does not forthwith pay into Court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, and does not dis- pute the amount due or claimed to be due from him to the judgment debtor, or if he does not appear upon summons, then the Court or Judge may order execution to issue, and it may issue accordingly, without any previous writ or process to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment debt. 5. If the garnishee dispute his liability, the Court or Judge, instead of making an order that execution shall issue, may order that any issue or question necessary for determining Ms liability be tried or determined in any manner in which any issue or question in an action may be tried or determined. 6. Whenever in proceedings to obtain an attachment of debts it is suggested by the garnishee that the debt sought to be attached belongs to some third person, or that any third person has a lien or charge upon it, the Court or Judge may order such third person to appear and state the nature and particulars of his claim upon such debt. 7. After hearing the allegations of such third person under such order, and of any other person whom by the ATTACHMENT IN THE HIGH COURT. loL same or any subsequent order the Court or Judge may order to appear, or in case of such third person not appearing when ordered, the Court or Judge may order execution to issue to levy the amount due from such garnishee, or any issue or question to be tried or deter- mined according to the preceding Rules of this jPrder, and may bar the claim of such third person, or make such other order as such Court or Judge shall think fit, upon such terms, in all cases, with respect to the lien or charge (if any) of such third person and to costs, as the Court or Judge shall think just and reasonable. 8. Payment made by or execution levied upon the Payment of garnishee under any such proceeding as aforesaid shall be execution a. a valid discharge to him as against the judgment debtor^ charge. to the amount paid or levied, although such proceeding may be set aside, or the judgment reversed. 9. There shall be kept by the proper ofiicer a debt attach- Book to le ment book, and in such book entries shall be made of the '^ ' attachment and proceedings thereon, with names, dates, and statements of the amount recovered, and otherwise ; and copies of any entries made therein may be taken by any person upon application to the proper ofiBcer. 10. The costs of any application for an attachment of Co«te. debts and of any proceeding arising from or incidental to such application, shall be in the discretion of the Court or a Judge. It will be well to consider first, Who may proceed to Who may attach a debt ? **'*°^- It is necessary, as appears from the terms of Rule 1, that the creditor seeking to attach must have recovered 152 ATTACHMENT OF DEBTS. a judgment, whereby some money has become payable to him ; a mere rule or order is insufficient. Thus in the case oi Re Frankland {h. E. 8 Q. B. p. 18: 42 L. J. Q. B. p. 13), it was held that a person who had obtained a rule ordering the payment of costs, was not, by the force of § 18 of 1 & 2 Vict. c. 110, a judgment creditor within the garnishment clauses of the C. L. P. Act, 1854; although it was provided by 1 & 2 Vict. c. 110, that all rules of court of common law whereby any sum of money or costs shall be payable to any person shall have the effects of judgments in the Superior Courts of Common Law, and the persons to whom such monies or costs shall be payable shall be deemed judg- ment creditors within the meaning of the Act ; and all remedies given by the Act to judgment creditors are given to such persons. So too in the case of Best v. Pembroke (L. R. 8 Q. B. 363), it was held that a person who had obtained an order for the costs of an interpleader issue, and entered t of record pursuant to § 7 of the Interpleader Act, 1 ife 2 Wm. IV. c. 58, so as to have the effect and force of a judgment, was not a judgment creditor within the meaning of " the garnishee clauses." * In the case of Be Price (L. R. 4 C. P. 155), it was held that an order of the Court of Chancery for the payment of money could not be enforced by attachment under the garnishee clauses in a Common Law Court. However, now, since the Judicature Acts judgment creditors in Chancery can attach debts, as well as judg- * SaHley v. ShemweU (1 B. & S. 1 : 30 L. J. Q. B. 223), in .so far as the decision therein was contrary to that in Best v. Pembroke, must, it is submitted, be now considered as overruled. ATTACHMENT IN THE HIGH COURT. 153 ment creditors at common law : and a common law court would not now refuse to attach a debt, because it was an equitable one ; though, of course, neither the . Chancery nor the Common Divisions would interfere in any way with each other's process. In the Irish case of The Commissioners of Donations v. ArMold (14 Irish C. L. E. 67, Q. B.), it was held, under the Irish C. L. P. Act, 1855, that an order of the Irish Lord Chancellor for payment of money by a party could not be enforced at common law by attaching a sum due to the party disobeying the order. In the case of Cremetti v. Grom (L. E. 4 Q. B. D. 225 : 48 L. J. Q. B. 337 : 27 W. E. 401), it was held that an order dismissing an action with costs for -want of pro- secution coidd not be enforced by attachment of debts under Order XLV. rule 2, even although it is provided by Order XLII. rule 20 of the Eules of 1875 that every order of a Court or a Judge whether in an action, cause or matter, may be enforced in the same manner as a judgment to the same effect. "One test," said Manisty, J., " is whether the affidavit required by Order XLV. rule 2 can be made. It clearly cannot." In Baynard v. Simmons (24 L. J. Q. B. 253 : 5 Ell. & Bl. 59), it was decided that an executor of a judgment creditor was not a person who could straightway proceed to attach a debt due to the judgment debtor j but that it was necessary that the executor should first revive the judgment recovered by his testator, or make himself a party to the record, by entering a suggestion upon the roll. And now it is provided by Order L. rule 4 of the Rules of 1875, that "where by reason of marriage, death, or bankruptcy, or any other event occurring after 154 ATTACHMENT OF DEBTS. the commencement of an action, and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the com- mencement of the action it becomes necessary or desirable that any person not already a party to the action should be made a party thereto, or that any person already a party thereto should be made a party thereto in another capacity, an order that the proceedings in the action shall be carried on between the continuing parties to the action and such new party or parties may be obtained ex parte, upon application to the Court or a Judge upon an allegation of such change or transmission of interest or liability, or of such person interested having come into existence.'' In Kennett v. Westminster Improvement Commissioners (25 L. J. Ex. 97 : 11 Ex. 349), it was held as one reason for refusing to allow a judgment creditor to attach a debt due to the judgment debtor that the judgment debt was one, the immediate payment of which the judgment creditor could not enforce. (See this case more fully referred to, post, p. 166.) In Jones^f. Jenner{25 L. J. Ex. 319 : 2 Jur. N. S. 574), Bramwell, B. said that in his opinion the garnishee clauses applied wherever the party could sue out a, fieri facias. Apmst With regard to the question — Against whom an attach- whom order ° "■ ° may be ment Order may be made ? rule 2 shows that the made. garnishee must be within the jurisdiction of the Coui-t. It seems too that the order may be made against execiitors if the testator was indebted to the judgment debtor, but in this case the order ought to show on its face that it is directed to them as executors, and does not profess to charge them personally : Per MeUish, ATTACHMENT IN TJSE HIGH COURT. 155 L. J., in Stevens v. Phelips. (L. E. 10 CL App. 423 : U L. J. Ch. 689.) The next consideration is — " Has the judgment creditor Has judg- taken any steps which disentitle him from attaching a ™gj j^^^ debt which he otherwise could have attached?" disentitled In Jones V. Jenner (25 L. J. Ex. 319:2 Jur. N. S. 574), '''"'^" ' it was held that a judgment creditor who had levied a plaint upon his judgment in the County Court, and had there obtained an order for payment of the amount by instalments, some of which had been paid, could not afterwards proceed by way of attachment of debts. " If," said Pollock, C. B., "a plaintiff elects to enforce his judgment in the Inferior Court, there he must remain." In Jauralde v. Parher (30 L. J. Ex. 237 : 9 W. E. 346 : 6 H. & N. 431), it was held that a judgment creditor who had arrested his judgment debtor under a ca. sa. and detained him in execution, could not proceed by way of attachment.* In Re Halahan (11 W. E. 10 : 7 L. T. N. S. 278), the judgment creditor had taken the judgment debtor in execution under a ca. sa., but the latter obtained his dis- charge from custody through the institution of bankruptcy proceedings. These proceedings proved abortive. The judgment creditor then proceeded by way of attachment, and a sum equal to about one third of his debt was paid into Court by a garnishee : for the remaining two thirds, * In Swrtky t. SkemweU (30 L. J. Q. B. 223 : 1 B. & S. 1) the judgment creditor was allowed to attach a debt due to Ms jadgnent debtor, altbough the garnishee {his debt being a judgment debt) had been taken in execution under a ca. sa. : but in this case, it will be observed that it was the garnishee who was taken in execution under the ca. sa., not the judgment debtor. 158 ATTACHMENT OF DEBTS. the judgment creditor then arrested his debtor again. It was held that under these circumstances, the judgment creditor was entitled to the one third paid into Court. So much for the position of the parties, and the con- ditions necessary to entitle a person to adopt the remedy at all. But it may be that the judgment creditor is not aware whether any debts are due to his judgment debtor, or even if aware that debts are due, he may not know from whom such debts are due. Method of In this event, the judgment creditor is enabled by ascertain- j.yjg ^ ^q ^^^q p^j. g^ gammons at Chambers fbefore a mg debtors ^ ofjodgment Master or District Registrar) calling upon the judgment debtor. debtor, his solicitor, or agent to attend at Chambers to shew cause why he should not attend and be oraUy examined as to any and what debts are owing to him, at the time and place to be appointed, and why he should not produce his books at tlie time of such examination. (See form of summons, ^josi, in Appendix A, form 1, p. 193.) This summons must be duly served upon the judg- ment debtor, and on the hearing, whether he appears or not, an order will be made, directing the judgment debtor to attend and be examined as to whether any and what debts are owing to him before the person appointed and at the time and place appointed, and also directing the judgment debtor to produce his books on the occasion. (See form of order, post, in Appendix A, form 2, p. 194.) This order is granted upon an afi&davit, to which a verified copy of the judgment is attached, stating that the judgment is unsatisfied. The affidavit should be either the judgment creditor's, or his solicitor's. (See form of afiidavit, post, in Appendix A, form 3, p. 194.) ATTACHMENT IN THE HIGH COURT. 157 The person directed to take the examination (probably the Master or District Eegistrar), will endorse the order •with an appointment of the time and place for holding it. The order must be personally served on the judgment debtor, or at least brought definitely to his knowledge. ThiTs in Mason v. Miiffgeridge (18 C. B. 642), it was held that service of the order upon the wife of the judgment debtor, without more was insufficient : and Lindley, J., at Chambers, May 10, 1878, has held that personal service is necessary. If the judgment debtor disobeys or disregards the order, he is liable to attachment of person for contempt. However, before an attachment will be granted, the judg- ment creditor must show, by affidavit, that the debtor had the means of complying with the order, or that conduct money to enable him to comply with it had been offered to him, or some reason why he cannot be examined at his own residence. {Protector Endowment Company v. Whitlam, 36 L. T. 467.) In Diqkson v. Neath and Brecon Railway Company (L. E. 4 Ex. 87 : 38 L. J. Ex. 57 : 19 L. T. 702 : 17 W. E. 501), it was held that an order cannot be made for the examination of the directors, or officers, of a company, against whom a judgment has been recovered. With respect to the nature of the examination which the judgment debtor has to undergo, the Court of Appeal in the recent case of The RepuUie of Costa Rica v. Strowsherg (L. E. 16 Ch. Div. 8), has held, reversing the decision of Malins, V. C. that the judgment debtor may not only be asked what debts are owing to him, but may be subjected to the strictest cross-examination as to his means, and be compelled to 158 ATTACHMENT OF DEBTS. answer all questions whicli may tend to throw any light npon the point. The judgment creditor having, either by means of this preliminary process or by some other means, obtained full information with respect to the state of the affairs of the judgment debtor, is in a position to know what, if any, debts are due from third parties to the judgment debtor. Before however proceeding to consider in its different stages the procedure he must adopt, this will be the proper place to examine the decisions on the question ■What is — W7iat is and what is not an attacliahle debt ? and what is Speaking generally, debts due from a third person to attachable the judgment debtor, and in which the judgment debt is ^^^*'- beneficially interested, are attachable. Two tests have been proposed for deciding whether or not a debt is attachable : 1. Can the judgment debtor maintain an action for it against the third person ? 2. Would the debt vest in the judgment debtor's trustee in bankruptcy, if he became insolvent? Though perhaps neither of these tests is absolutely conclusive on the point, yet it would be well, always to keep them in mind, in consider- ing whether a debt is attachable or not. Cases of ^^ ^^6 following cases it has been held that there was, attaciiable an attachable debt :-^ 1. An equitable debt, since the passing of the Judicature Acts. (Wilson v. Dundas, W. N. 1875, 232 ; Summers v. Morpliew, 61 L. T. Journal, 140.) 2. A debt due, but not yet payable {dehitiiminproesenti, solvendum in futuro). (Sparh v. Young, 8 Irish C. L. R. 251 ; Tapp v. Jones, L. R. 10 Q. B. 591 : 44 L. J. Q. B. 127 : 33 L. T. 201 ; 23 W. R. 694 ; Hx parte Joselyne, re ATTACHMENT IN TEE HIGH COURT. 15» Watt, L. K. 8 Ch. Div. 327, C. A.) In this caae, supposing the garnishee's debt is payable in instalments, one order for payment is sufficient ; there need not be a new order, as the several instalments become payable. Of course the garnishee cannot be;made to pay the judgment creditor sooner than he was bound to pay the judgment debtor. On the whole question of the attachment of debts, the judgment of Pigott, C. B., in Sparks t. Young (uU supra) is worth reading. 3. Kent. (Mitchell v. Zee, 36 L. J. Q. B. 154 : L. K. 2 Q. B. 259.) It is a moot point whether the effect of the Apportionment Act, 1870 (33 & 34 Vict. o. 35) by ■which rent is considered as accruing- due de die in diem, and is rendered apportionable accordingly, is to make rent attachable before it is payable. See the remarks of Crompton, J., in Jones v. Tliompson (Ell. Bl. & Ell. 63) ; andcf 7nr«(7owaws(L.R.14Ch.Div.638: 49 L.J.Ch.402). 4. A debt due to one of three joint judgment debtors. {Miller V. Mynn, 28 L. J. Q. B. 324 : 1 Ell. & Ell. 1075 ; 7W. E. 524.)* 5. An undoubted debt, though one the amount of which is unascertained. {Daniel v. McCarthy, 7 Irish C. L. R. 261.) 6. A debt for which the garnishee has already given the judgment debtor a cheque, at the time of the service of the order nid upon him, if upon service of such order * In Chapman v. Cottia (6 L. T. N. S. 282) the Court of Queen's Bench expressed an opinion that a judgment creditor cannot attach a debt due from one to another of his joint judgment debtors. It is difficult to see why he should not : .but certainly the question is hardly a practical one : for why should not the judgment creditor issue execution at once against the substantial judgment debtor on his judgment ! 160 ATTACHMENT OF DEBTS. the garnishee stops payment of the cheque. (Cohen v. Hale, L. R. 3 Q. B. D. 373 : 47 L. J. Q. B. 496 : 39 L. T. 35 : 26 W. E, 680.) Qucere : Is the garnishee in such a case bound to stop payment at once : and if he does not, has the judgment creditor then, any remedy ? 7. A debt due to the judgment debtor as executor, if he has been sued as executor : and this too, though a decree has been made in Chancery for the administration of the testator's estate, after the attachment order. {Burton v. Roberts, 29 L. J. Ex. 484 : 6 H. & N. 93 ; Fowler v. Roberts, 2 Giff. 226 : 8 W. R. 492.) The doubt expressed on this point in Chapman v. Collis (6 L. T. N. S. 282) would seem to be not ■well founded. 8. An annuity payable to a widow by the trustees of her husband's wilL {Nash v. Pease, 47 L. J. Q. B. 766.) In this case the, annuity was for the benefit of the widow and her son, and an inquiry was directed as to how much was necessary for the son's maintenance ; and the residue was ordered to be attached, and paid to the judgment creditor. 9. Money in the hands of the official manager of a company being wound up, and applicable for payment of a sum due to the judgment debtor. {Ex imrte Turner, 30 L. J. Ch. 92 : 2 De G. F. k J. 354.) 10. Money in the hands of a receiver in an adminis- tration action. This was held to be attachable by a judg-. ment creditor of a cestui que trust in In re Cowans (L. E. 14 Ch. D. 638 : 49 L. J. Ch. 402), by V.-C. Hall. The order in this case directed the receiver to pay over rents, as they accrued due, to the judgment creditor till the debt was satisfied : this perhaps was rather an extension of the principle of Tapp v. Jones. 1 1 . Proceeds of execution in the hands of the sheriff. ATTACHMENT IN THE HIGH OOUBT. 161 (O'Neill V. Gunningham, 6 Irish E. C. L. 503.) In this case the execution was against the judgment debtor, and the sheriff held surplus proceeds in his hands. In Murray V. Simpson, 8 Irish C. L. E. App. xlv., the sheriff had levied at the suit of the judgment debtor and the proceeds were attached in his hands before he had paid them over to the judgment debtor : But see Williams v. Beeves (12 Ir. Ch. E. 173), which may perhaps be regarded as the only authority for the proposition that money in-the sheriff's hands, is in custodid legis and cannot be dealt with, without leave of the Court. 12. Money paid into Court and standing to the credit of a party to a cause. (Adam v. Gillem, 9 Ir. E. C. L. 140.) But see Jones v. Brown (29 L. T. 79), post, p. 165. 13. Money payable by one Eailway Company to another, under a statutory agreement by which Company A. worked a line, and paid over to Company B. a fixed sum for pay- ment of interest on certain stock held by shareholders in Company B. (Bouch v. Sevenoaks, Sc. Bailway Company, L. E. 4 Ex. 133 : 48 L. J. Ex. 338.) 14. A pension given solely in respect of past services. Bent V. Bent, L. E: 1 P. & D. 366 : 15 W. E. 591 : 15 L. T. 635 : the case of an Indian officer ; Wilcoch v. Terrell, L. E. 43 Ex. Div. 323 : 39 L. T. 84 : the case of a County Court Judge ; Sansom v. Sansom, L. E. 4 P. D. 69 : the case of a servant in the Civil Service. These were all cases of sequestration : but they would equally apply in attachment proceedings. Observe the dis- tinction between a pension for past services, and half-pay where the party can -be called on again to serve. 15. Money of the judgment debtor's, in the hands of his bankers. The law regarding the relation of banker 162 ATTACHMENT OF DEBTS. and customer as one of debtor and creditor, it seems to follow that the money is attachable. (Of. Seymour v. Corporation of Brecon, 29 L. J. Ex. 243 : and remarks of the County Court Judge in Dolphin v. Layton, L. E. 4. C. P. D. 131.) Cases of In the following cases it has been decided that there aWedtbt." ^^^ '^^ attachable debt. 1. A verdict obtained by the judgment debtor, on which judgment has not yet been signed. Thus in Jones v. Tlumpson (27 L. J. N. S. Q. B. 234 : E. B. & E. 63) the judgment creditor was not allowed to attach a verdict for J6 7 5 which thef judgment debtor had obtained in an action for unliquidated damages. In answer to the argument that it was at least a debt " accruing " within the meaning of the Act, Wightman, J., said, "It appears to me that it is neither a debt owing, or accruing. The latter word can only be applied in my opinion to a dehitum in prcesenti, solvendum in futuro. There must be a debt perfected to entitle a judgment creditor to the benefit of this clause : " and per Crompton, J., " There is a large class of cases, which come under this head {sc. of a deb. in pr. solv. infyt.), such as the case between the drawer and payee of a promissory note still running, in which I have always held at Chambers and I understand, other judges also, that there is a debt. On the other hand I have always held that it is not sufficient that in aU probability there will be a debt as in the cases of rent, or annuities not yet due. The mere fact that it is most probable there will be a debt, is not sufficient ; there must be an actual debt." In Shaw v. Shaw (18 L. T. Irish (^. B. 420), the Irish Court following Jones v. Thompson refused likewise to attach ATTACHMENT IN THE HIGH COURT. 163 a verdict for unliquidated damages. In Dresser v. Jones (28 L. J. C. P. 281 : 6 C. B. N. S. 429), the same point arose, save that the verdict was for the whole amount sued for on a policy of marine insurance ; the necessity of proceeding to attach immediately after, and not before judgment was obtained, was demonstrated by the priority granted to a judgment creditor, who had attached the debt, after judgment had been signed on the verdict. (Cf. In re Newman, ex parte Broohe, L. R. 3 Ch. Div. 494.) 2. A superannuation allowance payable under a resolu- tion of a Board of the Directors of a Company to a retired clerk. {Innes v. East India Company, 25 L. J. C. P. 154 : 17 C. B. 351.) In this case it was sought to attach an instalment of the allowance. In refusing the application, Jervis, C. J., said> " In order to make allowances of this sort binding upon the Company they must be gi-anted in the usual form> viz. by deed. I think moreover that this allowance is only a gratuity and not a debt." (Cf. Ex parte Hawker, in re Keely, L. R. 7 Ch. App. 214.) See however Dent v. Dent, L. E. 1 P. & D. 366, and the other cases cited, ante, p. 161. 3. Debts bond fide assigned by the judgment debtor before judgment is obtained against him (Hirsch v. Goates, 25 L. J. C. P. 315 : 18 C. B. 757), and even after it, if before service of the order nisi upon the garnishee. ( Wise V. BirTcenshaw, 29 L. J. Ex. 240.) Nor is it at all neces- sary that notice of the assignment should have been given to the garnishee. (Pickering v. Ilfracombe Railway Company, L. E. 3 C. P. 235 : 37 L. J. C. P. 118 ; Rohinsmi V. Nesbitt, L. R. 3 C. P. 264 : 37 L. J. C. P. 124.) 4. A legacy due to the judgment debtor, in the hands of an executor ; even though the executor has expressed u 2 16,4 'ATTACHMENT OF DEBTS. his readiness to pay the money over to the judgment creditor. (Macdonald t. Hollister, W. E. 523.) "A legacy," said Parke, B., " cannot be attached unless there has been an account stated such as to entitle the party to maintain an action." The recent case of In re Cowans (49 L. J. Ch. 4:02) would seem to make this rule, a doubtful one. 5. Salary not payable, and only partly earned. {Hall T. Pritchett, L. K. 3 Q. B. D. 215 : 47 L. J. Q. B. 15 : 26 W. E. 96.) In this case it was unsuccessfully sought to attach the salary of a medical officer, on June 15, which was not payable till completion of the services, for which it was given, on June 30th. 6. The surplus of a bankrupt's estate, in the hands of the assignee, or trustee. {Re Greendll, L. E. 8 C. P. 24 : 42 L. J. C. P. 55.) In this case it was unsuccessfully sought to attach in the hands of the official assignee of the Court of Bank- ruptcy, the surplus of the bankrupt's estate after payment of 20s. in the £ to all the creditors under the bankruptcy ; and the Irish cases of Boyes v. Simpson (8 Irish C. L. E. 523) and Gilmour v. Simpson (8 Irish C. L. R. App. xxxviii.) in which it was decided that dividends in Bankruptcy due to the judgment debtor could . not be attached by the judgment creditor in the hands of either the creditors', or the official, assignee, were approved of 7. Arrears of a Government annuity granted to the wife of the judgment debtor dum sola. {Dingley v. JRohin- son, 26 L. J. K S. Ex. 55.) " This is not a debt to the judgment debtor," said Martin, B. 8. Money in the hands of the Registrar of the County ATTACHMENT IN THE SIGH COURT. 165 Court and paid in by a judgment debtor of the judgment debtor. {Dolphin v. Layton, L. E. 4 C. P. D. 133.) Doubt was however thrown on the correctness of this decision in the recent case of Re Cowans (see 49 L. J. Ch. 402), and it certainly seems open to grave doubt. 9. A mere notice to treat under the Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18). (Bichardion V. Mmk, L. K. 2 C. P. D. 9 : 36 L. T. 58). f It is impos- sible to say at present," said Grove, J., " what may be the result of the notice to treat. It may turn out that the party to whom the notice has been given has no interest whatever in the premises, in respect of which he can be entitled to compensation. It clearly is not a debt owing or accruing within the meaning of the rule." 10. The monies to become due under a promissory note not yet due cannot be attached. (Fine v. Kinner, 11 Ir. R. C. L. 40.) " This being a negotiable instrument," said Lawson, J., " no order of ours can prevent its being en- dorsed over." The same observation would apply to a biU of exchange with equal force. 11. Money paid into Court in an action brought by the judgment debtor, but in which action judgment has not yet been obtained. (Jones v. Brown, 29 L. J. 79.) Perhaps however now as the plaintiiF would under the provisions of Order XXX. of the Rules of the S. C. 1875 have full power to take the money out, either in whole or part satisfaction of his claim, the case would be different. See too, ante, p. 161, the case oi Adams v. Gillem (9 Irish C. L. R. 148). 12. A bond of indemnity against costs given by a person to the judgment debtor to induce him to bring an action against the judgment creditor. (Johnson v. Diamond, 24 L. J. Ex. 217 : 11 Ex. 73.) 106 ATTACHMENT OF DEBTS. In this case Diamond was the real plaintiff in an action which he had induced Courtis the nominal plaintiff, to bring against Johnson. Diamond by bond stipulated with Courtis that he (Diamond) would pay Johnson all costs which eventually C ourtis might in this action be liable to pay Johnson. Courtis was nonsuited, and Johnson had judgment to recover £199 Is. lOd. against Courtis. Diamond, though requested so to do by Courtis, did not pay Johnson the £199 Is. lOd. Johnson then sought to attach the money in Diamond's hands as a debt due from Diamond to Courtis : but it was held that there was no attachable debt. "This is a case," said Parke, B., "of a covenant to indemnify ; " and again, " In this case I think there is not any debt. It is perfectly clear that the legislature never intended to attach causes of action." 13. A debt due to judgment debtors who, by Act of Parliament were bound to pay all holders of their bonds of whom the judgment creditor was one, pari passu. {Kennett v. Westminster Improvement Commissioners, 25 L. J. Ex. 97.) In this case the Commissioners under their statutory powers borrowed monies seovired by bonds, by the terms of which all the bondholders were to be repaid pari passu. A bondholder sued the Commissioners and obtained judg- ment by default. It was held that he could not attach a debt due from a third party to the Commissioners, as that would give him a preference over the other bond- holders in violation of the terms of the bond. Fer Alderson, B., " An execution creditor cannot attach a debt, which it would be a breach of trust for the execu- tion debtor to pay over to him." ATTACHMENT IN TEE HIGH COURT. 167 14. Money in the hands of a receiver appointed by the Court of Chancery, and by it directed to be paid to the judgment debtor. {De Winton v. Mayor of Brecon, 28 Beav. 200.) In this case, before the Judicature Acts, a judgment creditor at Common Law attached and obtained payment from the receiver of monies which the Court of Chancery directed him to pay over to the judgment debtor. The Court of Chancery ordered it to be refunded. In such a case now, it is submitted that payment could only be enforced by an order of the Chancery Division, which alone would be in a position to say whether the monies could, having regard to the purposes to which it was to be applied, be properly ordered to be paid over by the receiver to the judgment creditor, in lieu of to the judg- ment debtor. 15. Money paid into Court by executors in an adminis- tration suit; in which a decree for administration had been made, though the order nisi for attachment was served on the executors before they paid the money into Court. {Stevens v. Phelips, L. K. 10 Ch. App. '4:17.*) * It is difficult to nnderstand the principle of this decision. Apart Irom the fact of the administration suit pending, it seems clear from the facts that the judgment creditor's right would override that of the trustee in bankruptcy of the judgment debtor. The case seems to decide (1) that the fact of a decree having been made in an adminis- tration suit places the ifhole personal estate of the testator, in the possession of the Court, even though, it is as a fact, at the time of the service of the order nisi in the possession of the executors : and (2) that under these circumstances, the Court being thus in the possession of the funds, service on the executors of the order was useless, they having parted with the money. It is submitted that the sound ground of the decision is that before the Judicature Acts, the Court ' of Chancery having no original jurisdiction in the matter of attachment 168 ATTACHMENT OF DEBTS. 16. By the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104, § 233), it is enacted that "no wages due or accruing to any seaman or apprentice shall be subject to attachment, or arrestment from any Court." 17. By " The Wages Attachment Abolition Act, 1870 " (33 & 34 Vict. c. 30), after reciting the inconvenience that had arisen from the attachment of wages, it was enacted that after the passing of the Act no order for the attachment of the wages of any servant, labourer, or workman, should be made by the Judge of any Court of Eecord or Inferior Court. Decisions It may be useful here to refer to some decisions as to attachm^t *^^ property liable to the process of foreign attachment in Mayor's in the Mayor's Court of London. By that process an Court. ordinary creditor, if neither his debtor nor his debtor's property can be found within the city of London, can, if he iinds residing within the jurisdiction of the Court, any debtor of his debtor, or any person holding property of debts, would refuse to exercise even an eijuitable jurisdiction, in aid of the Common Law, in the matter. It will he seen from a consideration of the cases, that it is no easy matter to answer the question, Cam monies in the hands of, or under the control of, the Courts be attached ? No doubt, the money is in the hands of a person against whom an action for the amount would not generally lie at the suit of the judgment debtor, and if this was a con- clusive test, the question might be answered at once in the negative. It is submitted, however, that the true rule (though it must be ad- mitted that it is not easily deducible from the authorities) will be found to be that if the money has been dedicated to the use of the judgment debtor, then the mere fact that it is in the hands of the Court, or one of its officers, be he Registrar, Eeceiver, Master, or Official assignee, will not of itself disentitle the judgment creditor from attaching it ; though, he would not be allowed to receive it, if it has been paid, into Coui-t for purposes, which are inconsistent with or might clash with its being allowed to be paid over to the judgment creditor. ATTACHMENT IN TEE HIGH COURT. 169 belonging to his debtor (before any action brought), attach the property or debt, and so compel the appear- ance of his debtor. In default of the debtor even then appearing, he can proceed to obtain payment of the amount from the garnishee. In the following cases it has there been held that the property was attachable. 1. Money found by the garnishee belonging to the debtor ; or money given to the garnishee to keep, by the debtor. (Tros v. Miehell, Cro. Eliz. 172.) 3. Debts due to a corporation. ( v. Hamburgh Company, 1 Mod. 212.) 3. Part of a debt. {Anon., Godb. 195, No. 282.) In the following cases it was held that there was no attachable property. 1. Debts in which the debtor has ceased to have any beneficial interest. (Westoby v. Day, 22 L. J. Q. B. 418.) 2. Debts for which the debtor could not maintain an action. {Webster v. Webster, 31 Beav. 393.) 3. Monies of the debtor in the hands of the garnishee, and on which the garnishee has a lien, cannot be attached unless the hen is discharged. {Nailian v. Criles, 5 Taun- ton, 558.) 4. Money which the garnishee has been ordered to pay by the Court. {Goppel v. Smith, Grant v. Harding, 4 Term. Eep. 312.) 5. Property of the intestate in the hands of the ordinary. Com. Dig. For. Attachm. 6. Property of a foreign ambassador or potentate in the hands of their debtors in this country. ( Wadsworth v. Queen of Spain, 17 Q. B. 171 : 20 L. J. Q. B. 488.) (For foreign attachment generally, see Locke on 170 ATTACHMENT OF DEBTS. Garnishee order nisi. Service thereof. "Foreigil Attaoliment," and Brandon on "Foreign Attachment.") The judgment creditor having ascertained by this pre- liminary process, or by some other means, that there is a debt due from a third party to the judgment debtor, obtains as a first step in his attachment proceedings an esc parte order nisi at Chambers from a Master (or District Registrar) attaching all debts owing or accruing from the third party to the judgment debtor. The latter part of this order usually consists in substance of a summons to the third party to appear at Chambers to shew cause why he should not pay to the judgment creditor the debt which he owes to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt. (See the form of a garnishee order nisi, post, in Appendix A, form 4, p. 195.) This order is obtained upon an affidavit of the judgment creditor or his solicitor shewing (a) that judgment has been obtained by the judgment creditor against the judgment debtor ; (/3) that such judgment is unsatisfied wholly or in part ; (y) that the third party is indebted to the judgment debtor, and is within the juris- diction. (See the form of affidavit, post, in Appendix A, form 5, p. 196.) The power of making the order nisi is a discretionary power ; therefore although it can technically be appealed from, yet the Judge or Court would be very unlikely to interefere with the Master's discretion in granting it. (See Seymour v. Corporation of Brecon, 29 L. J. Ex. 243.) The order must be served personally on the garnishee. If however it be impossible or very inconvenient to serve it personally on him, notice of the order in such manner, ATTACHMENT IN THE BIGE COURT. 171 as tlie Court or Judge (and now therefore the Master or District Eegistrar) may direct, may be given to the garnishee. Care should in this case be taken to give the notice, as it is directed to be given. The service of the order on the garnishee according to Its effect the express words of rule 3 " binds the debt in his ™ „ ^™^" hands ; " and the effect of these words has been much discussed in cases, in which, pending the attachment pro- ceedings, the judgment debtor has become bankrupt. Under the old Bankruptcy Acts of 1849 and 1861, it In cases was held that, according to the wording of the sections J^^'^^ relating to secured creditors, although a judgment creditor debtor who had served the order nisi upon a garnishee, was t^^^^^j a creditor holding security for his debt, yet that such security did not avail him as against the assignees in bankruptcy of the judgment debtor {Holmes v. Tutton, 24 L. J. C. B. 346 : 5 Ell. & Bl. 65 : 25 L. T. 0. S. 177) ; and in Tilbury v. Brown ( 30 L. J. Q. B. 46), it was held that even an order absolute for 'payment by the garnishees to the judgment creditor, did not, unless payment had been made, better the judgment creditor's position as against the assignees in bankruptcy of the judgment debtor. The Bankruptcy Act of 1869, however, differed in its definition of, and the rights it conferred on, secured creditors, from the previous Acts of 1849 and 1861. A secured creditor is defined by § 16, sub-sect. 5 of the Act of 1869 as "any creditor holding any mortgage, charge, or lien on the bankrupt's estate, or any part thereof, as a security for a debt due to him," and § 12 of the Act recognizes the right of such " creditor holding security " to realize his security. ' 172 ATTACHMENT OF DEBTS. Accordingly in tlie case of Emanuel v. £ridger (L. R. 9 Q. B. 286 : 43 L. J. Q. B. 96), it was held that, after an order absolute for payment had been made against the garnishee, and in Lowe v. Bldlcemore (L. R. 10 Q. B. 485 : 44 L. J. Q. B. 155) that after an order nisi for attachment, had been served, the judgment creditor's claim to the debt, in the event of the bankruptcy of the judgment debtor, overrode the claim of the trustee in bankruptcy of the judgment debtor ; and these two cases were approved of and followed by the Court of Appeal in Ilx parte Joselyne, in re Watt (L. R. 8 Ch. Div. 327 : 38 L. T. 661), where the order nisi was served before the bankruptcy of the judgment debtor.* On the other hand, in In re Stanhope SUkstone Colliery Company (L. R. 11 Ch. Div. 160), the Court of Appeal held that until the service of the garnishee order nisi, the judgment creditor was not in the position of a secured creditor, and that in the event of the bankruptcy of the judgment debtor (or the presentment of a petition to wind up a company) before service of that order, the judgment creditor's right was defeated. Lord Justice James, says, "In this particular case, the creditor is made his own sheriff, and he is allowed to make his own execution, just as a landlord puts in a distress himself for rent. There is. no distinction in principle between them. The writ of. execution against goods does not * Ex parte Greenway (L. E. 16 Eq. 619) must be considered as overruled by Ex pa/i-te Josdyne. The latter is a strong case, because, following the principle of Tapp v. Jones, the Court of Appeal held that the judgment creditor's right overrode that of the trustee in bankruptcy in respect of monies not payable by the garnishee to the judgment debtor at the time of the latter's bankruptcy. ATTACHMENT IN THE HIGH COURT. 173 prevail unless it has been actually executed So the order of attachment, or the writ of attachment — they are the same thing in my opinion — does not prevail until it has been executed by being served upon the debtor." It was decided in Eichter v. Laxton (27 W. E. 214 : 39 L. T. 499), that the order overrides an attachment in the Mayor's Court, even if the latter be first in point of time. (See too Nemnan v. Rook, 4 C. B. N. S. 434 ; ,Levy V. Lwell, L. R. 11 Ch. Div. 220.) The order served should be strictly regular ; and if before service of it, the garnishee hondfide pays over the debt to the judgment debtor or his representative he is protected. {Cooper v. Brayne, 27 L. J. Ex. 448.) When the order is served on the garnishee, or notice Courses of it is given to him, his first consideration is, whether or "pei to the not he disputes the debt : if he does not, and it is really ^ ™' due, and he has no set-off to it, his proper course is to forthwith pay the amount due from him to the judgment debtor (or an amount sufficient to satisfy the judgment) into Court (rule 4), and if he does this, then, by rule 8, such payment is a valid discharge to him as against the judgment debtor to the 'amount paid, even though the proceedings whereby the judgment creditor obtained his judgment be set aside, or the judgment itself set aside. An order absolute for payment over of the money to the judgment creditor is then of course made, and the garnishee as he thus consents to the order absolute, is entitlied to his costs, generally fixed at one guinea. If however the garnishee dispute the debt alleged to be due from him to the judgment debtor, he must appear as directed by the order nisi, for if he do not, the Judge (Master or District Eegistrar) may (by rule 4) order 174 ATTACHMENT OF DEBTS. execution to issue against him, " and it may issue accor- dingly -without any previous writ or process to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment debt." If the garnishee appears, it is to dispute his liability on some ground or other. Rule 5 provides that any issue or question necessary for determining his liability, may be tried and determined in any manner in which any issue or question in an action may be tried and determined. If the garnishee really has no defence, and cannot make out even a primd facie case, the Master would probably exercise his discretion in not allowing the matter to be further tried {Newman v. Rooh, 4 C. B. N. S. 434), and an order absolute for payment would be made against the garnishee at once. (See order absolute Issue in Appendix A, form 6, p. 197.) If however a primd facie directed, if jg made out, an issue or special case would probably be primd fade directed, but whatever the order at Chambers dealing case. ^ith the matter might be, it seems that the Court would be very reluctant to interfere with the discretioiiari/ power there exercised. {Wyse v. Birlcenshaw, 29 L. J. Ex. 240 ; Seymour v. Corporation of Brecon, 29 L. J. Ex. 243.) Effect of If the garnishee claims a set-off against the judgment garnishee debtor, the accounts as between the judgment debtor set-off ^nd tli6 garnishee must be gone into : for the judgment against creditor only stands in the shoes of the judgment debtor: j' c' and only payment of the balance due on the account, when taken, can be enforced by the judgment creditor. (Nathan v. Giles, 5 Taunt. 558.) But the accounts would only be gone into up to the date of the service of the order nid : the judgment creditor would not be prejudiced ATTACEMENT IN THE HIGH COURT. 175 by any alteration in the state of the accounts between the judgment debtor and the garnishee, after that date. (Tapp V. Jones, L. K. 10 Q. B. 591.) On the same principle, if the garnishee have any claims against the judgment debtor, he can assert them against the judgment creditor: and they can be gone into, as a counterclaim, on the trial, or hearing. (Kawpt v. Kaupt : cor. Cleasby, B., June 28, 1878.) On the other hand, the garnishee cannot set up against the judgment creditor, who is proceeding against him, as representing the judgment debtor, a set-off he (the gar- nishee) claims against the judgment creditor himself (Sampson v. Seaton Railway Company, L. E. 10 Q. B. 28.) It may be that at the very time these attachment pro- ceedings are taken against the garnishee, the latter is being sued by the judgment debtor for his-debt. If this be so, in the absence of any collusion between judgment debtor and garnishee, no proceedings will be allowed to be taken against the latter. {Richardson v. Greaves, 10 W. R. 45.) If the Master at Chambers thinks the matter fit to be determined by an issue, and the judgment creditor refuses to accept an issue, the attachment will be' discharged, and the judgment creditor will have to pay the c^pts of the abortive proceedings. {Wintle v. Williams, 27 L. J. Ex. 311 : 3 H. & K 288;) If the liability of the garnishee turns on a question of Issue, fact, an issue will ordinarily be directed ; the question being whether at the time of the service of the order nisi on the garnishee, the latter was indebted to the judgment debtor. See form of garnishee issue, post in Appendix A., form 8, p. 198. With respect to the evidence at the trial, it must be 176 ATTACHMENl OF DEBTS. remembered that the judgment creditor, is the "alter ego " of the judgment debtor. Special If ^^^ question is one of law, a special case -will be ease. ordered to be stated for the opinion of the Divisional Court. {Wilson v. Dundas, W. N. 1875, p. 232.) The proceedings subsequent to the trial of the issue, or special case, will be the same as the proceedings sub- sequent to the trial of an ordinary action, or the hearing of an ordinary special case. (See post, in Appendix A, forms 7 and 9, directing re- spectively an issue, and a special case.) Summary If the judgment creditor and the garnishee at Chambers determina- i^^^^j^ consent, as they can, that the Master (or District Registrar) do decide the matter summarily, this summary determination will be final, and no appeal from it will lie. (Bade v. Winser, 47 L. J. Q. B. 584.) Proceed- It may happen that the garnishee disputes his liability tv^fi^''^" to the judgment debtor, on the ground that the debt party's sought to be attached belongs to some third pei-son, or claim IS j^^^ some third person has a lien or charge upon it. If this be so, such third person will be ordered to appear and state the nature and particulars of his claim to such debt, f (See form of order directing the appearance of such third person, post, in Appendix A, form 10.) If such third party does not appear, when summoned, an order can be made barring his claim, and in default of the garnishee now paying the debt, execution can issue against him to levy the amount.* If such third party do appear then the Master after • The words of rule 7 would seem to allow of an issue being directed between the judgment creditor and the garnishee, even at this stage ; but if the garnishee had disputed his liability in the first ATTACHMENT IN THE HIGH COURT. 177 hearing Mm, may, if he has no primd fade claim, bar him, and order execution to issue against the garnishee in default of the latter paying the debt ; or if the third party does make out a primd facie case, he may order any issue or question to be tried or determined according to the preceding Rules of the Order, or he may make such other order as he thinks fit, upon such terms, in all cases, with respect to the lien or charge (if any), of such third person, and as to costs as he shall think just and reasonable. In fact, the proceedings after the introduction of the third person are, as between the judgment creditor and the third person, analogous to the proceedings on the appearance of the garnishee himself. If such third person claimed the debt from the garnishee the form of issue between the judgment creditor and such third person would, it is submitted, be " Whether at the time of the service of the order nisi upon the garnishee, the garnishee was indebted to the judgment debtor or to the third person in respect of the said debt." If such tlard person claimed a lien on the debt, the form of issue would be " Whether at the time of the service of the order nisi, the third person had a lien on the said debt, due from the garnishee to the judgment debtor." With respect to a lien or charge on the debt due from Eiglit of the garnishee, cases have arisen where the debt being a f?'™*°'' *" judgment debt, the solicitor of the judgment debtor claimed against the. a lien on the judgment his client had recovered, for his costs in the action. instance, solely on the ground of this third person's claim, he would not, it is submitted, be allowed afterwards to dispute his liability on other grounds. At aU events, if he were allowed it would probably be on the terms of his paying all costs up to that time. 178 ATTAGE,MENT OF DEBTS. The attachment overrides the solicitor's right to a lien on the judgment, for his general bill of costs. (Hough v. Edwards, 26 L. J. Ex. 54) But if the solicitor's claim is in respect of the costs of the particular action in which the judgment has been recovered, it overrides the judgment creditor's right to attach the debt {Sympson v. Proihero, 26 L. J. Ch. 672 : 5 W. E. Ch. 814) ; and if the judgment creditor, after the notice of the solicitor's lien, yet receives payment from the garnishee, he will be made to refund to the solicitor. (Eisdell v. Coningham, 28 L. J. Ex. 213.) 23 & U By 23 & 24 Vict. c. 127, § 28, it is enacted that, "in 127 s'28 ^^^''y "^^^ '^ which an attorney or solicitor shall be employed to prosecute or defend any suit, matter, or proceeding in any Court of justice, it shall be lawful for the Court or Judge before whom any such suit, matter or proceeding has been heard, or shall be depending, to declare such attorney or solicitor entitled to a charge upon the property recovered or preserved, and upon such declaration being made, such attorney or solicitor shall have a charge upon and against and a right to payment out of the property, of whatsoever nature, tenure or kind the same may be, which shall have been recovered or preserved through the instrumentality of any such at- torney or solicitor for the taxed costs, charges and expenses of or in reference to such suit, matter or pro- ceeding, and it shall be lawful for such Court or Judge to make such order or orders for taxation of and for raising and payment of such costs, charges and expenses, out of the said property as to such Court or Judge shall appear just and proper : and all conveyances and acts done to defeat, or which shall operate to defeat such ATTAGSMENT IN THE HIGH COURT. 179 charge or right, shall, unless made to a bond fide pur- chaser for value without notice, be absolutely void and of no effect as against such charge or right : provided always that no such order shall be made by any such Court or Judge in any case in which the right to recover payment by such costs, charges, and expenses is barred by any statute of limitations." After the passing of this Act, it was held in the case of " The Jef Davis" (L. E. 2 A. & E. 1), that a proctor's lien on a judgment for his costs overrode a judgment creditor's attachment. The same point was decided in the case of " The Leader" (L. K. 2 A. & E. 314) with the addition, that as the garnishee had, Jcnowing of the proctor's claim, yet paid over the monies to the judgment creditor, he was compelled to pay the amount again to the proctor. The case of the "Leader"' is an authority for the proposition that it is the duty of the garnishee to make known the fact to the Court, if he is aware of any claim to the debt, or claim to a lien thereon.* In Birchall v. Pugin (44 L. J. C. P. 278 : L. R 10 C P. 397), a judgment creditor obtained an order nisi attaching a debt, pending the hearing of a summons for a charging order taken out by the solicitor of the judgment debtor under 23 & 24 Vict. c. 127. By the exertions of the solicitor, the judgment debtor had recovered the money * The cases of Eisdell t. Coningham and The Leader shoTr that, after notice of the solicitor's lien, it is neither safe for the garnishee to pay over the debt, nor for the judgment creditor to receive it. But, it is submitted that, if the garnishee paid over, or the judgment creditor received, the money without notice of the lien, the payment would, as, to the person so paying or receiving -without notice, be protected. N 2 180 ATTACHMENT OF DEBTS. Payment under order dis- charges garnishee. from the gamisliee. It was held that the solicitor was entitled to priority over the judgment creditor. If the garnishee pays the debt under any of the orders made during the attachment proceedings, or if payment is enforced from him by execution against him, then by rule 8, he is discharged from his debt, whatever happens. Thus in Wood v. Dunn (L. E. 2 Q. B. 73) and Turn- bull T. Robertson (47 L. J. C. P. 296), where the garnishee paid the debt under pressure of an execution against him, it was held that the payment was a valid discharge to him : although if he had had time to consider the matter, to look about him, and see who "was really entitled to receive the debt, it would have been his duty to take such steps before paying over the money. " We think," said Channell, B., in the former case, " that if the garnishees had notice of the deed in bankruptcy it was under such circumstances that they were unable to get the order set aside before they were compelled to pay under the immediate threat of an execution, and to save its being actually levied." On the other hand, if instead of paying under the order of a Judge or Master, the garnishee chooses to make private arrangements with the judgment creditor as to the payment of the debt, he is not protected under rule 8. " I own,'' said Bramwell, B., in Turner v. Jones (1 H. & N. 878 : 26 L. J. Ex. 262), "the inclination of my own opinion is that the garnishee is not protected, unless he gets a Judge's order directing payment as there mentioned. It seems to me manifest that he cannot have a right to agree with the execution creditor to substitute a different liability to that which he has entered into ATTACHMENT IN THE HIGH COURT. 181 with the exeoutiou debtor." (See also Lochwood v. Nash, 18 C. B. 536.) In Kent v. Tomkinson (L. R. 2 C. P. 502), after an order had been made for execution against the garnishee, he executed a deed of composition under the Bankruptcy Act, 1861 : it was held that this was a bar to the execution. In Gulverhouse v. Wickens (L. K. 3 C. P. 295) it was held that a payment into Court of money by a garnishee under a Judge's order was a valid payment within rule 8, and discharged the garnishee : and that the subsequent execution by the judgment debtor of a composition deed under the Bankruptcy Act, 1861, did not prevent the judgment creditor being entitled to the money so paid in. With respect to the costs of attachment proceedings. Costs, little need be said. By rule 10, they are in the discretion of the Court or Judge (Master or District Registrar). As has been said, if the garnishee does not dispute the debt, and consents to an order absolute for payment, he will get his costs, usually fixed at 1 guinea. If the garnishee disputes his liability, and any issue or other proceeding is directed, the costs would as a rule abide the event ; and this is so, if nothing is said about costs in the order du'ecting the issue (Johnson v. Diamond, 1 1 Ex. 431). If the judgment creditor refuses to accept an issue when it is offered him, and the proceedings thus prove abortive, he will have to pay all the costs of the pro- ceedings {Wintle V. Williams, 3 H. & N. 288 : 27 L. J. Ex. 311). CHAPTER II. ATTACHMENT OF DEBTS IN THE COUNTY COUETS. By orders in Council dated respectively the 10th of November, 1867, and the 18th of May, 1870, the process ■with respect to the attachment of debts established by the " garnishee clauses " of the C. L. P. Act, 1854, and the C. L. P. Act, 1860, was extended (in pursuance of powers for that purpose originally contained in the 105th section of the Act of 1854, and the 44th section of the Act of 1860) to the County Courts, and the procedure in those Courts is still regulated by those clauses, coupled with the provisions in Order XXIV. of the County Court Eules of 1875. It will be best therefore to first set out (a) the garnishee clauses of the Acts of 1854 and 1860, (^) the rules of Order XXIV. of the County Court Eules of 1875. ^LI'\^<;k< '^^^ provisions of the C. L. P. Act, 1854, are as Act, iB54, § 60-67. follows : — Examina- § 60. It shall be lawful for any creditor who has .indgment' o'^^^i'^ed * judgment in any of the Superior Courts, to debtor as apply to the Court or a Judge for a rule or order that due to Mm. *^^ judgment debtor should be orally examined as to any and what debts are owing to him before a Master of the Court,. or such other person as the Court or Judge shall ATTACHMENT IN COUNTY COUBTS. 183 appoint ; and the Court or Judge may make sucli rule or order for the examination of such judgment debtor, and for the production of any books or documents, and the examination shall be conducted in the same manner as in the case of an oral examination of an opposite party before a Master under this Act. § 61. It shall be lawful for a Judge, upon the ex parte Judge may applioation of such judgment creditor, either before or attachment after such oral examination, and upon affidavit by himself of debts. or his attorney stating that judgment has been recovered, and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment debtor, and is within the jurisdiction, to order that all debts owing or accruing from such third person (herein- after called the garnishee) to the judgment debtor shall be attached to answer the judgment debt ; and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Judge or a Master of the Court, as such Judge shall appoint, to show cause why he should not pay the judgment creditor the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt. § 62. Service of an order that debts due or accruing Order for to the judgment debtor shall be attached, or notice f^fP^f^"* , 'to bind thereof to the garnishee, in such manner as the Judge debts. shall direct, shall bind such debts in his hands. § 63. If the garnishee does not forthwith pay into Prooeed- Court the amount due from him to the judgment debtor, ^"S^*" W or an amount equal to the judgment debt, and does not due from dispute the debt due or claimed to be due from him to ^^^^ the judgment debtor, or if he does not appear uponment summons, then the Judge may order execution to issue, ^''''*'"^" 184 ATTACHMENT OF DEBTS. and it may be sued forth accordingly, without any previous writ or process, to levy the amount due from such garnishee towards satisfaction of the judgment debt. Judge may § 6^- If ^^^ garnishee disputes his liability, the Judge allow jiidg- instead of making an order that execution shall issue, ditorto sue may order that the judgment creditor shall be at liberty gamishee. to proceed against the garnishee by writ, calling upon him to show cause why there should not be execution against him for the alleged debt, or for the amount due to the judgment debtor, if less than judgment debt, and for costs of suit ; and the proceedings upon such suit shall be the same, as nearly as may be, as upon a writ of revivor issued under « The C. L, P. Act, 1852." Gamisliee § ^^- Pay™eat made by or execution levied upon the discharged, garnishee under any such proceeding as aforesaid shall be a valid discharge to him as against the judgment debtor to the amount paid or levied, although such pro- ceeding may be set aside, or the judgment reversed. Attach- § 66. In each of the Superior Courts there shaU be ment book j^gp^ g^^ the Master's office a debt attachment book, and by the in. such book entries shall be made of the attachment Masters of ^nd proceedings thereon, with names, dates and statements each Court. f^ ° ■,-,■,■ , , , of the amount recovered, and otherwise ; and the mode of keeping such book shall be the same in all the Courts; and copies of any entries made therein may be taken by any person, upon application to any Master. Costs of § 6'^' 1'h^ ''osts of any application for an attauhment applica- of debt under this Act, and of any proceeding arising from or incidental to such application, shall be in the discretion of the Court or a Judge. 0. L. P. The provisions of " The C. L. P. Act, 1860," are as Act, I860, follows:— § 28-31. ATTACHMENT IN COUNTY C0UBT8. 185 § 28. In proceedings to obtain an attaclinient of debts Judge may under "The C. L. P. Act, 1854," the Judge may in his 5^^^^*° discretion refuse to interfere where, from the smallness of in prooeed- the amount to be recovered, or of the debt sought to be "l^J^ attached, or otherwise, the remedy sought would be debts, worthless or vexatious. § 29. Whenever in proceedings to obtain an attach- Prooeed- ment of debts under the Act above mentioned, it is ^^^^^^^ suggested by the garnishee that the debt sought to be sou has a attached belongs to some third person who has a lien or ^^^J"^ ^ charge upon it, the Judge may order such third person to appear before him, and state the nature and par- ticulars of his claim upon such debt. § 30. After hearing the allegations of such third Judge may person upon such order, and of any other person whom of't^i^'^ by the same or any subsequent order the Judge may person and think fit to call before him, or in case of such third " j.^. person not appearing before him upon such summons, the Judge may order execution to issue to levy the amoimt due from such garnishee or the judgment creditor to proceed against the garnishee, according to the provisions of " The C. L. P. Act, 1854," and he may bar the claim of such third person, or make such other order as he shall think fit, upon such terms, in all cases, with respect to the lien or charge (if any) of such third person, and to costs, as he shall think just and reasonable. § 31. The provisions of " The C. L. P. Act, 1854," so ProTisions far as they are applicable, shall apply to any order, and yj^j. ^ the proceedings thereon made and taken, in pursuance of 125, to the herein next before mentioned powers under this Act. *^?^ *° The provisions of "The County Court Eules, 1875," county Order XXIV. are as follows : — Court 186 ATTACHMENT OF DEBTS. Eiiles, 1. \Wliere plaintiff desires defendant to he examined '({j^' at the trial as to tlie debts due to Mm, he mvM give 2XIV. notice.'] Where a plaintiff is desirous that the defendant, if the defendant shall have judgment given against him, shall be orally examined forthwith after the judgment shall have been given, as to what debts are due and owing or accruing to him, the plaintiff shall, before the action is called on, lodge with the registrar a statement in writing of the. name, address and description of the person or persons whom he considers are debtors to the defendant, and who quoad such debts are within the jurisdiction of the Court. 2. \Examination of defendant as to debts owing to him. — Order tliereupon.] Where such a statement has been lodged, the defendant, if he shall have had judgment given against him, may then be examined before the Court, at the request of the plaintiff, as to any debts due, owing or accruing to the defendant from any persons mentioned in the statement, and if any such person be then present, he may be required forthwith, if he admits the debt, to show cause why he should not be ordered to pay into Court for the benefit of the judgment creditor such debts, or so much thereof as will satisfy the judg- ment debt, and the Court may make an order for the payment of such debts, or so much thereof as will satisfy the judgment debt, and such order shall be entered in the minute book and may be enforced in hke manner as any order made in any action in the Court ; and where such person pays the money as ordered, he shall not be liable for any costs, and an entry of the payment shall be made in the " Cash Book '' and " Ledger.'' 3, [Proceedings against gamisliee. — 30 & 31 Vict. ATTACHMENT IN COUNTY COURTS. 187 c. 142, § 1.] A plaintiff ■who has not lodged such state- ment, or a defendant who has obtained judgment against a plaintiff, may at any time after the judgment, upon lodging with the registrar of the Court in which the judgment was given an af&davit stating the fact of the judgment, and of its being unsatisfied, and that a third person [hereinafter called the garnishee] is indebted to the judgment debtor, and is quoad such debt within the jurisdiction of the Court and could be sued therein with- out leave, or by leave under § 1 of the County Courts Act, 1867, may enter a plaint to obtain payment to him of the amount of the debt due to the judgment debtor from the garnishee, and where the garnishee is not quoad such debt within the jurisdiction of the Court, the judgment creditor, upon lodging a certificate of the judgment and a copy of the said aflidavit with the registrar of the Court in the distridb of which the garnishee resides or carries on business, may enter a plaint therein. 4. [Service of garnishee summons.'^ The summons on the plaint shall be personally served on the garnishee, and when so served it shall attach in the hands of the garnishee all debts due, owing or accruing from him to the judgment debtor. 5. [No costs where gamisliee 'pays.'\ Where the gar- nishee shall pay the money into Court five clear days before the return-day, he shall not be liable for any costs incurred by the judgment creditor. 6. [Order on trial.'] Upon the return day the Court shall determine as to the liability of the garnishee, and as to the party by whom the costs of the proceeding by plaint shall be paid, and make an order or orders in accordance with such determination. 188 ATTACHMBNT OF DEBTS. 7. [^Certificate of payment and order to he sent.l^ Where the Court in which the garnishee is sued is not the Court in which the judgment upon which he was garnished was given, the registrar of such Court shall send a certificate of the order of his Court to the Court in which such judgment was given, and of payment made,- if any, before or after the return day. The provisions of the Common Law Procedure Acts, 1854 and 1860, are, it will be observed, almost identical with those of Order XLV. of the Eules of the Judicature Act, 1875. Law in All the cases decided in the Superior Courts as to who County jjjg^y attach debts, what is and what is not an attachable Court same , , as in debt, asc, &c., are equally applicable to County Courts. Courts" (^^® Chapter I. passim.) The law with respect to the attachment of debts in the County Courts being thus identical with the law in the Superior Courts, it is only necessary here to sketch the procedure in the County Courts, as regulated by the statutory provisions and rules just set out. Procedmre It will be observed that a plaintiff in a County Court Courts. action has a means of proceeding to attach debts peou- Plaintiff's liar to himself, conferred on him by rules 1 and 2 of power Order XXIV. vnder rules 1 and 2. He is enabled, before the action in which he is plaintiff is called on, to lodge with the Registrar a statement in writing of the name, address, and description of the person or persons whom he considers are debtors to the defendant, and who quoad such debts are within the juris- diction of the Court. (See form of this statement, postf in Appendix B, form 1.) '' ' I / ( ATTACHMENT IN COUNTY COUtiTS.) . / , 189 If he recovers judgment in the action, the plaintiff may at once have the defendant examined as to the debts alleged to be due to him from the persons referred to in the statement, and if such person or persons are present, they may at once, if they admit the debt, be ordered to pay it to the plaintiff, or into Court for the plaintiff's use. (See form of order, post, in Appendix B, form 2.) If the plaintiff knows of a friendly garnishee, this, no doubt, seems a very excellent method to adopt. But if he does not, or if the garnishee be hostile, why should such garnishee be likely to be present in Court at the time ? If he be absent, by what machinery is he to be summoned ■? and if he disputes the debt, -what means are to be adopted for trying' his liability] No doubt, if the procedure in the third and following rules of the Order are applicable to the proceedings taken under the first and second rules, these questions are fully answered. But there is nothing to show that they do. On the contrary, the commencement of rule 3 seems to confer the right of proceeding under it and the following rules on " a plaintiff who has not lodged such statement, or a defendant who has obtained judgment against a plaintiff." And upon this too a serious question arises as to whether a plaintiff who had tried to proceed under rules 1 and 2, could, if those proceedings proved abortive, proceed under rule 3 and the subsequent rules at all. The ordinary process for attaching debts in the County Ordinary Court is for the judgment creditor, after he has obtained 1"™°°^^- his judgment, to enter a plaint in the Court in which he Plaint, has recovered judgment, lodging at the same time with the Registrar of the Court an affidavit, stating the recovery Affidavit. 190 ATTACHMENT OF DEBTS. Couree ■where gar- nishee not within jurisdiction of County •Court. Summons. Sei-vioe ■thereof. Payment into Court. of the judgment, the fact of its being unsatisfied, and the fact of the garnishee being indebted to the judgment debtor, and being within the jurisdiction of the Court. If the garnishee be not ■within the jurisdiction of the Court ■where judgment was recovered, but within the jurisdiction of some other County Court, the judgment creditor will proceed in the latter Court, and enter his plaint there. In this case he must lodge a copy of the above-mentioned affidavit and a certificate of the judg- ment he has obtained, which he will get from the Begistrar of the Court in which he recovered his judgment, with the Registrar of the Court in which he proposes to proceed against the garnishee. (See form of this certifi- cate, post, in Appendix B, form 5.) For the entry of plaints generally, see Pitt Lewis's County Court Practice, Book i., c. 6. The ordinary fee of Is. in the £ is payable on the entry of the plaint. On the plaint being entered, a garnishee summons (see form 3 in Appendix B) is issued by the Registrar, and this must be served personally on the garnishee, and then it attaches the debt or debts in his hands. In fact, the service of this summons corresponds to service of the order nisi in proceedings in the Superior Courts. (Vide ante, pp. 171, 172.) However, if the garnishee be a firm or company or corporation, then Order XIX., rule 25, of the County Court Rules of 1876, allows, in lieu of personal service, service, as provided by rules 12 and 18 of Order VIII., on the firm or corporation. On being served with this summons, the garnishee, if he admits the debt, can, five clear days before the return ATTACHMENT IN COUNTY C6tJRTS. 191 day, pay the amount into Court, and if he does this, he is not liable for any costs incurred by the judgment creditor : the money will then be paid out to the latter and the proceedings will be at an end. If however the garnishee disputes the debt, then the Trial, question as to his liability comes on for trial, like any ordinary County Court action instituted by plaint and summons, and all incidental proceedings that can be taken in an ordinary action can be taken. If the garnishee suggests that any third party is entitled Introduc- to the debt, or claims a lien or charge thereon, then such Jj^'^j third party must be summoned to appear in the usual party, way to maintain his claim, and the proceedings would be analogous to those between the judgment creditor and the garnishee. On the hearing the Judge may (under § 28 of the Judge may C. L. P. Act, 1860) in his discretion refuse to interfere ^^"seto ™teriere. where, from the smallness of the amount to be recovered or the debt sought to be attached, or otherwise, the remedy sought would be worthless or vexatious. The proceedings on the trial are the same as those on Judgment, the trial of an ordinary action, and after going into the merits judgment will be given either for or against the garnishee. (See form of judgment, post, in Appendix B, form 6.) From this judgment there is no appeal {Mason v. No appeaL Wirral Highway Board, L. R 4 Q. B. D. 459).* If the unsuccessful party do not pay the amount found Execution. * In SaU T. Pritchat (L. E. 2 Q. B. D. 215) and 2)olphin T. Layton (L. K. i C. P. D. 130) appeals were bronglit against tte County Court Judge's decision, and were successful ; but the point that no appeal lay was not taken, as no counsel appeared to oppose it. 192 ATTACHMENT OF DEBTS. due from him by the judgment, execution can issue against him for the same. (See form of execution, post, in Ap- pendix B, form 7.) Costs. The costs are in the discretion of the Judge, and will, as a rule, follow the event. As has been already said, if, upon service of the summons upon him, the garnishee pays the debt into Court, he will not have to pay any of the costs of the judgment creditor. APPENDIX. APPENDIX A. FORMS IN ATTACHMENT PROCEEDINGS IN THE HIGH COURT. FOSM 1. Summons to Jth)GMEnt Debtor to be Examined as to Debts owing to him. In the High Court of Justice, Division. 18 . No. , Between Judgment Creditor, and Judgment Debtor. Let all parties concerned attend the Master in Chambers on day, the day of , 18 , at o'clock in the noon, on the hearing of an application on the part of the above-named judgment creditor that the above-named judgment debtor should attend and be orally examined as to whether any and what debts are owing to him before the Master in Chambers, [oj' the District Registrar, &c., as the case may be], at such time and place as he may appoint, and that the said judgment debtor should produce his [books]* before the said Master at the time of the examination. Dated the day of , 18 . This summons was taken out by of , solicitor for , the above-named judgment creditor. To , the above-named judgment debtor. * Or aa may be required. 194 ATTACHMENT OF DEBTS. FOBM 2, Obdkb fob Examination op Judgment Debtob, In tlie High Court of Justice, Division. 18 . No, . , Master in Chambers, Between Judgment Creditor, and Judgment Debtor. Upon hearing , and upon reading the affidavit of , filed the day of , 18 , and It is ordered that the above-named judgment debtor attend and be orally examined as to whether any and what debts are owing to him, before the Master in Chambers, at such time and place as he may appoint, and that the said judgment debtor produce his [books*] before the said Master at the time of the examination, and that the costs of this application be Dated the day of , 18 , FOEM 3. Affidavit of Judgment Ceeditoe in support of Oedee foe Examination of Judgment Dbbtob. In the High Court of Justice, Division. 18 . No. . Between Judgment Creditor, and Judgment Debtor. I, , of , the above-named judgment creditor [or solicitor for the above-named judgment creditor] make oath and say as follows :;— 1. By a judgment of the Court given in this action, and dated the day of > 18 , (a verified copy of which judgment is annexed hereto), it was adjudged that I [or the above-named judgment creditor] should recover against the above-named judg- * Or as may be ordered. APPENDIX A. 195 ment debtor the sum of £ and costs to be taxed, and the said costs were by a Master's certificate dated the day of , 18 , allowed at £ , 2. The said still remains unsatisfied to the extent of and interest amounting to £ 3. The said is within the jurisdiction of the Court and resides at 4. I am [or the judgment creditor is] desirous that the said should be oraUy examined, by such person as the Court shall appoint, as to whether any and what debts are owing to him by any party or parties, and that, upon such examination he should produce his books [or as may be]. Sworn at , the day of , 18 . Before me This affidavit is filed on behalf of the above-named judgment creditor. FOEM 4. Gaknisheb Order (attaching Debt). In the High Court of Justice. Division 18 . No. . , Master in Chambers. Between . .... Judgment Creditor, and Judgment Debtor, Garnishee. Upon healing , and upon reading the affidavit of , filed the day of , 18 , and It is ordered that all debts owing and accruing due from the above-named garnishee to the above-named judgment debtor be attached to answer a judgment recovered against the said judg- ment debtor by the above-named judgment creditor, in the High Court of Justice, on the day of , 18 , for the sum of £ , on which judgment the said sum of £ remains due and unpaid. 2 19S ATTACHMENT OF BBBTS. And it is further ordered that the said garnishee attend the Master in Chambers on day, the day of ,18 , at o'clock in the noon, on an application by the said judg- ment debtor that the said garnishee pay the debt due from him to> the said judgment debtor, or so much thereof as may be sufficient to satisfy the judgment. And that the costs of this application be Dated the day of ,18 Form 5. Affidavit of Judgment Ceeditob in bttppoet of Ordeb Nisi. [^Seading as in Form 3.] I, , of , the above-named judgment creditor [<;?• solicitor for the above-named judgment creditor] make oath and say as follows It— 1. By a judgment of the Court given in this action, and dated the day of ,18 , it was adjudged that I [or the above- named judgment creditor] should recover against the above-named judgment debtor the sum of £ and costs to be taxed ; and the said costs were by a Master's Certificate dated the day of ! 18 , allowed at £ 2. The said still remains unsatisfied to the extent of , and interest amounting to £ 3.* , is indebted to the judgment debtor, , in the sum of £ , or thereabouts. 4. The said is within the jurisdiction of this Court. Sworn at , the day of , 18 . Before me, This affidavit is filed on behalf of , the above-named judg- ment creditor. * Name, address, and description of garnishee. APPENDIX A. ' , l»7 FoBlf 6. Gaknishee Oeder (Absolute foe Payment). [Heading as in Mrm 4.] Upon hearing , and upon leading the affidavit of , filed the day of , 18 , and whereby it was ordered that all ■debts owing or accruing due from the aboTe-named garnishee to the above-named judgment debtor should be attached, to answer a judgment recovered against the said judgment debtor by the above-named judgment creditor, in the High Court of Justice, on the day of , 18 , for the sum of £ , on which judg- ment the said sum of £ remained due and unpaid. It is ordered, that the said garnishee do forthwith pay the said judgment creditor the debt due from him to the said judgment debtor {or so much thereof as may be sufficient to satisfy the judgment debt], and that in default thereof execution may issue for the same, and that the costs of this application be Dated the day of , 18 . FOEM 7. Oedee dieecting Issue between Judgment Ceeditok AND GrAENISHEE. [_lTeadmg as in JVo. 4.] Upon hearing , and upon reading the affidavit of , filed on the day of > 18 , and It is ordered that the above-named , the judgment creditor, and the above-named , the garnishee, do proceed to the trial of an issue wherein the judgment creditor shall be the plaintiff and the garnishee the defendant, and the question to be tried therein shall be whether the garnishee was, at the time of the service of the order nisi herein upon him, viz., on the day of , 18 , indebted to the above-named judgment debtor. And it is further ordered that this issue be prepared and delivered by the plaintiff therein vrithin from this date, and be returned by the defendant therein within days and be tried at And it is further ordered that the question of costs and all further questions be reserved until aftgr the trial of the said issue- ■ Dated the day of , 18 . 198 'ATTACHMENT OF DEBTS. Form 8. Gaenishee Issue, In the High Court of Justice, Division. 18 .No. . Between and Plaintifi, Defendant. Garnishee issue. Delivered the day of , 18 , by , solicitor for the above-named plaintifE, pursuant to a garnishee order of [Master Smith] dated the The plaintiff, A.B., affirms, and the defendant, M F., denies that the defendant H. F. was indebted to C D., of [name, address, and description of the judgment debtor'], in the sum of £ , or some other sum, at the time of the service on the defendant F. F. of the order nisi, dated the day of , 18 . And it has been ordered by Master Smith that the said question shall be tried by a jury, and that the said matter should be tried at Therefore let a jury come, &c. FOKM 9. Obdeb dikecting Special Case between Judgment Cebditob and Gabnishbe. [Heading as in No. 4.] Upon hearing , and upon reading the aifidavit of , filed on the day of , 18 , and It is ordered that the question as to the liability of the garnishee herein be tried by means of a special case to be agreed upon be- tween the above-named judgment creditor and the garnishee, such special case to be prepared by the judgment creditor and submitted to the garnishee within days, and returned approved by the garnishee within days, and that any question that may arise as to the form of such case be submitted to and determined by the Master sitting at Chambers. And it is further ordered that the question of costs and all further questions be reserved until after the hearing of the said s^pecial case. Dftted the day of , 18 . APPENDIX A. 199 FOBM 10. Obder calling on Thied Person to Appear. In the High Court of Justice, Di-Tision. 18 .No. , , Master in Chambers. Between Judgment Creditor, and Judgment Debtor, and Garnishee, and ...... Claimant. Upon hearing , and upon reading the affidavit of , filed on the day of , 18 , and It is ordered that the further hearing of the parties to the order «m herein, dated the day of ,18 , wherein it is ordered that all debts due and owing and accruing due from the above^ named garnishee to the judgment debtor shall be attached to answer a judgment recovered against the judgment debtor by the judgment creditor, shall stand adjourned until And let M. M., the party alleged to be entitled to the said debt, and the judgment creditor and the garnishee, attend the Master in ChambfiTB on the day of ,18 , to state the nature and par- ticulars of their resjtective claims to such debt, and maintain or relinquish the same, and abide such order as may be made herein. Dated the day of , 18 , APPENDIX B. FORMS OF ATTACHMENT PROCEEDINGS IN THE COUNTY COURT. FOEM 1. Notice op Dbsieb to Examine Dbfbndast as to cbktain Debts Due to him. No. of Plaint. In the County Court of , holden at Between A. £ Plaintiff, and C.2). Defendant. I, the above-named plaintiff, am desirous, should I succeed in obtaining a judgment against the defendant, of having him examined forthwith after I have obtained such judgment, as to whether or not the following debts are due to him from the follow- ing persons : viz. ja. p. of , for goods sold and delivered. G. H. of , for work done. ' (Signed) A. B. To the Registrar of the above Court. Dated this day of , 18 . Form 2. Obder when Garnishee present. No. of Plaint In the County Court of , holden at Between A. B. Plaintiff, and C.B Defendant, E.F. Garnishee. Whereas the plaintiff has obtained a judgment against the defendant for the sum of £ , \here insert the amount of judg- ment'] : APPENDIX B. 201 Upon examination of the defendant and E, F., of , it is ordered that all debts due and owing, or accruing due from the said E. F. to the above-named defendant, shall be attached to answer the said judgment debtee. And it is further ordered that the said E. F. do pay into Court the sum of & , being the amount of the debt due from him to the above-named defendant [or being so much of the debt due from him to the above-named defendant as is sufficient to satisfy the said judgment debt], on the day of The day of , 18 . By the Court, Kegistrar of the Court. FoBM 3. Summons upon a Gaenishbe, No of Plaint. In the County Court of , holden at Between A. S., Plaintiff, [Address and Description,'] and C. n., Defendant, \_Address and Description,'} and -E F., Garnishee, [Address and Description.'] Whereas the plaintiff at a Court holden at ' , on the day of , 18 , obtained a judgment against C. D. of [name, address and description'], for the sum of £ , for and costs, which judgment remains unsatisfied. And whereas the plaintiff having filed an affidavit stating that you are indebted to the said C. D., you- are hereby summoned to appear at a Court holden at , on the day of ,18 , at the hour of in the noon, to show cause why an order should not be made upon you for payment of the amount of the said judgment, or so much thereof as shall equal the amount of the debts due and owing and accruing from you to the said C. D. And take notice, that from and after the service of the summons upon you all such debts are attached to answer the said judgment, 202 ATTACHMENT OF DEBTS. and that if you 8hall pay the said debts to the said C. D. or other- wise dispose of them, you will be liable to be committed for contempt. And further take notice, that if you shall pay to the registrar of the Court, the amount of such debts, or so much thereof as will satisfy the judgment debt, fire clear days before the day you are required to appear, you will incur no costs. Dated this day of ,18 . Eegistrar of the Court. To , the garnishee. Note. — Rules 5 and 6 of Order 24 to be printed on iach of minmwns. FOKM 4. Affidavit foe Leavb to Summon Gaenisheb. No. of Plaint. In the County Court of , holden at Between A. B Plaintifi^ and CD Defendant. I, A. B.jOi , in the county of , the above-named plaintiff, make oath and say : 1. That I, on the day of last, recovered a judgment in the County Court of , holden at , in this action against the above-named defendant for the sum of £ debt and costs. 2. That the said judgment is still wholly unsatisfied [or is still unsatisfied to the sum of & , part of the said judgment so re- covered as aforesaid.] 3. That X i?*., of , in the county of , is indebted to the said defendant in the sum of £ for 4. That the said JS. F. resides or carries on business within the district of this honourable Court [or that the cause of action be- tween the said defendant and the said E. F. arose wholly or in part within the district of this honourable Court, or that the said J?. F. dwelt or carried on business within the district of this honourable Court within six calendar months of this, the day of ,18 .] Sworn, &c. APPENDIX B. 203 O O I o o 1 M : O i! h ' o as 20 as- o py of an nd othei ty Court gistrar. m ^:.i ".« rt O 1.1 >-3 || -' ■§1 g.3 2 B .a 3 •■ B gfl.§ 11^ 38 is §1 -3 ^ — II =« ■ is 1 • o "v Appear- ance. o . u ll 1 i 1 a 1 is a 3 4s S fi « o ■si O en « .: 1^ 204 ATTACHMENT OF DEBTS. FoBU 6. JUDSMENT AGAINST OABNIBHEE. In the County Court of , holden at Between A. £. Plaintiff. and MJP. Defendant. Whereas the plaintiff, at a Court holden at , on the day of ( 18 , obtained a judgment against C D. of , for the sum of £ for and for costs, and which judgment remains now unsatisfied : And whereas the plaintiff having filed an affidavit stating that the defendant was indebted to the said C. B., the defendant was summoned to show cause why he should not he ordered to pay the amount of the said judgment or so much thereof as should equal the amount of the debts due and owing and accruing from him to the said C. D. \ and the defend- ant having failed to appear before the Court this day [or appeared before the Court this day, and having failed to show cause why he should not be ordered to pay such debts, or having shown sufficient cause why he should not be ordered to pay such debts :] It is ordered, that the plaintiff do recover against the defend- ant the sum of £ \]here insert the amount of the judgment debt, or so much tliereof as tlie debts amount to mhen the same are less than the judgment debt] and ■& for costs, amounting together to the sum of £ [or that the plaintiff do pay the sum of £ for defendant's costs]. It is ordered that the defendant [or plaintiff] do pay the same to the Registrar of the Court on the day of j 18 , [or where judgment for plamtiff and tlie Judge so order, by instal- ments of for every days, the first instalment to be paid on the day of , 18 ,] Dated the day of , 18 . FOKM 7. Execution against GAiansHEE, [Seadmg as in No. 6.] Whereas on the day of , 18 , it was ordered that^. F. should pay into court the sum of £ , being the [or so much of the] amount of debts found due from him to C. D. of [here insert APPENDIX B. 205 address and deacription^, a judgment debtor of A. B. [or as is su£Scient to satisfy the judgment of the said A. BJ], and whereas default has been m^de in payment of the said order ; these are therefore to require and order you forthwith to make and levy by distress and sale of the goods and chattels of the defendant, wheresoever they may be found within the district of this Court (except the wearing apparel and bedding of him or his family, and the tools and implements of his trade, if any, to the value of five pounds), the sum stated at the foot of this warrant, being the amount due to the plaintiff under the said order, including the costs of this execution ; and also to seize and take any money or bank notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money, of the defendant, which may there be found, or such part, or so much thereof as may be sufficient to satisfy this execution and the costs of making and executing the same, and to pay what you shall have so levied to the Eegistrar of this Court, and make return of what you have done under this warrant, immediately upon the execution thereof. Given under the seal of this Court this day of , 18 . By the Court, Eegistrar of the Court. To the High Bailiff of the Court, and others the Bailiffs thereof. Amount for wMoli judgment was obtained Paid into Court .... Bemaining due Poundage for issuing this warrant Total amount to be levied £, s. d Notice. — The goods and chattels are not to be sold, until after the end of five days next following the day on which they were seized, unless they be of a perishable nature, or at the request of the defendant. Application was made to the Eegistrar for this warrant at 19 & 20 minutes past the hour of in the noon of the day of Vict, c '18 • 108,' §'4(6. INDEX TO INTEKPLEADER. ACTION in which before 1831 interpleader existed at Common Law, 1, 2 of debt, detinue, trover and assumpsit under Act of 1831, 7, 8 interpleader extended to " all " by Rules of 1875, 9 for unliquidated damages, 9 stay of pending, on hearing of summons, 43 claimant may be made defendant in, 47 what may be brought independently of interpleader proceedings, 81,93 AFFIDAVIT of plaintiff and claimant on hearing of summons, 44, 45 by whom to be sworn, 45 sherifif s, in support of summons, 75 sherifif not allowed supplemental, 76 claimant's, 77 not required by execution creditor, 77 forms of, 118, 119, 126 APPEAL does not lie from summary decision, 46, 78 lies from order substituting defendants, 47 directing special case, 47 directing issue, 49 judge's judgment on jury's verdict, 63 rules refusing new trial, 63 judgment on special case, 48 does not lie from judgment at chamiers on jury's findings, 64 mode of, in issues directed by or heard before, Chancery judges, 90, 91 when it lies from judgment of County Court judge, 103, 104 ASSIGNEE, interpleader by, of debt or chose in action under subseot. ' 6, § 25 of J. A. 1873, 8 208 INDEX TO INTERPLEADER. ASSIGNEE— coreWnitai. when in County Court, can interplead, 104 forms of proceedings in County Court when assignee interpleads, li4, 144a AXTOTIONEEE, when he can interplead, 11, 12 BILL OF EXCHANGE, when acceptor can interplead, 10 when he cannot, 14, 15 BILL OF SALE, position of holder of, in interpleader's issue, 55 setting up jus tertii hy holder of, 56 determination under § 13 of C. L. P. Act, 1860, when claimant claims under, 78, 79 BOND of interpleader, its use and form, 131 effect of, if tendered unstamped, 81 CERTIOEAEI, interpleader proceedings cannot be removed into High Court by, 104 CHAMBERS, interpleader proceedings commence at, 41, 74, 75 reference from, to Court, 47 findings, or verdict at trial remitted to, 63 CHANCERY, old practice by bill in, 3, 4 doubt as to its existence now, 5 common law practice applies in, 4 forms in, 131 note on practice in, 89 — 91 CLAIMANT. what must be subject matter of his claim, 10, 11 may claim a lien, .13, 29 rights to be asserted between plaintiff and, 14, 15 effect of claim being obviously good or bad, 27, 28 when landlord is, 28 may be an infant, 29 judgment debtor can be, 29 equitable claim, 22, 35 INDEX TO INTEBPLEABW- 209 CLAIMANT— coTitmuerf. action by, against sheriff, 81, 82 action by, against execution creditor, 83 actions by, in respect of County Court proceedings, 98, 99 costs of, in ordinary interpleader, 69 — 72 sheritt's „ 88, 99 COLLUSION must not exist, 13, 30 its nature, 13 inference of, from position of under-sheriff, 31 sheriff need not deny, 75 COLONIES Act does not apply to, 17 COSTS. how dealt with in ordinary interpleader, 68 — 73 when parties do not appear, 70 apportionment of when allowed, 71 — 73, 88, 89 when dealt with, 73 in sheriff's interpleader, 85 — 89 when parties do not appear, 86, 88 sheriff never gets his, 85 when sheriff has to pay, 86 in County Court, 103 COUNTY COURTS, jurisdiction of, 92 proceedings in, 92 — 104 appeal from, 103 CROWN, Act does not apply in case of, 17 DAMAGES. claims for unliquidated not within Act, 9 course as to damages ultra the main dispute, 21 in action for trespass against sheriff or execution creditor, 82, 33 DELAY, defendant must not be guilty of, 16 sheriff must not be guilty of, 32 when relief refused on account of, 32, 33 may be explained, 34, 35 210 INDEX TO INTBBPLEABEB. DISTRICT REGISTRAR, possesses powers of a Master, 42 EVIDENCE must be relevant to issue, 52 admissions for pui-poses of issue, 51 cases on reception and rejection of,, 61, 62 EXECUTIOlir CREDITOR must appear on summons, 76 unless he abandons his claim, 76 made defendant in the issue, 53 actions by or against, independently of interpleader proceedings, • 82, 83, 84 his right to return of writ, 84, 85 costs of, 88, 89 claim by, against High BailifF, 100 POEEIGNER. interpleader allowed, though a party, 22 must give security for costs as in ordinaiy action, 22, 66, 68 3'ORMS in stakeholder's interpleader, 117 — 124 in sheriff's intei-pleader, 125 — 131 in County Court interpleader, 132 — 144a nsed in Chancery, 131 HIGH BAILIFF, when he may interplead in County Court, 33 claims against him for damages by claimant and execution creditor, 99, 100 costs of, 103 INDEMNITY, party i-efusing may yet interplead, 13, 30 party who has taken, cannot interplead, 13, 30 when implied from relations of sheriff and undersh»riff, 30 INTEREST, defendant must have none in subject matter, 11, 12 sheriff must have none, 30, 31 j INDMX TO INTERPLEADER. 211 INTEEPLEADER at common law before 1831, 1, 2 • in Chancery tiU 1875, 2, 3, 4 at common law since 1831, 6 et seq. when stakeholder can interplead, 6 — 17 when sheriff can, 23 — 36 practice in, when stakeholder interpleads, 37 — 73 practice in, when sheriff interpleads, 73 — 89 in County Courts, 92—104 ISSUE, order directing it, 49 feigned, now obsolete, 49 preparation thereof, 50 object of it, 51 ' construction thereof, 52 cases on its construction, 52 — 58 postponement of it, 59 trial of, 60 reception of evidence thereat, 61 — 63 proceedings subsequent to trial thereof, 63, et seq. form of issue, 129 JUDGE, power giren him by Act of 1831, § 1, 38 power given him by 1 & 2 Vict. c. 45, § 2, 110 when Master stands in his place, 41, 42 can give judgment on jury's findings, 63 his powers in Chancery Division, 90, 91 of County Court, his duty when particulars of claim are insuffi- cient, 102, 103 when his consent is necesSary for an appeal, 103, 104 JUS TEETH, rule as to setting up, 66 cases as to setting up, 55, 56 LANDLORD, his right to rent, 28, 29 his right to costs if summoned to interplead, 88 as claimant claiming rent in County Court, 99 form of summons to, in such case, 133 p 2 212 INDEX TO INTEBPLEADEB. LIEN/ right to interplead when defendant claims, 11, 12 right to interplead when claimant claims, 13, 29 MASTER,_ his jurisdiction in interpleader, 41, 42 PARTICULARS OF CLAIM to be delivered by claimant in County Court, 99 nature of them, and cases thereon, 100, 101, 102 PURCHASER from bailiff not within jurisdiction of County Court, in inter- pleader proceedings, Addendum position of, if made party to an issue, 62 from sheriff, evidence when he is claimant, 62 RECORD, power to enter proceedings of, 64 practice almost obsolete, 65 form of record, 124 REFERENCE to Court from Chambers, 47 inapplicable in Sheriff's interpleader, 80 REGISTRAR of County Court ; his duties in interpleader, 99 RULES of Supreme Court, 1875, 4, 7, 41, 42, 48, 61, 64, 65, 75, 115 of Supreme Court, 1878, 41 of County Court, 1875, 94—98 SECURITY, when claimant called on to give, 81, 82 SECURITY FOR COSTS, when and from whom required, 66 — 68 SHERIFF, requisites to entitle him to interplead, 23 — 36 practice when he interpleads, 73 — 89 INDEX TO INTEBPLEADEB. 213 SSERlS'S—contimued. actions against, 81, 82 attathment against, 33, 34, 84, 85 costs of, 85, 86 et seq. SPECIAL CASE, when it may te stated, 47 practice \rhen directed, 48 its advantages, 48 forms of order_directing, 122, 130 STAKEHOLDER, requisites to entitle him to interplead, 7 — 23 practice when proceedings are instituted by, 36 — 73 coats of, 69, 70 STANNAKIES, Court of, jurisdiction in interpleader, 17 STATUTES CITED. 43 George III. c. 46, 86 1 & 2 Will. IV. c. 58 (Interpleader Act, 1831), 4, 5, 23, 37. 73, 105 ./.:.>, I & 2 Vict. c. 45, 74, 80, 100 14 2 Vict, c 110, 65 8 & 9 Vict. c. 96 (County Courts Act, 1845), 92 8 & 9 Vict. c. 109, 39, 49, 111 II & 12 Viet. c. 86, 17 17 & 18 Vict. c. 125, 66 23 & 24 Vict. c. 126 (Common Law Procedure Act, 18601 7, 23, 39, 74, 112 30 & 31 Vict. c. 142 (County Courts Act, 1867), 93 38 & 39 Vict. c. 77 (Judicature Act, 1873), 8, 114 41 & 42 Vict. c. 31, 56 SUMMARY DETEEMINATIOlir, when availahle, 45, 46, 78 no appeal from, 46 under § 13 of C. L. P. Act 1860, 78, 79 SUMMONS, interpleader proceedings instituted hy, 41, 75, 99 parties to, 41, 77 service of, 43, 75 forms of, 43, 117, 125, 132—136 TITLE DEEDS within the Act, 9 214 INDEX TO INTEBFLEADEE. TRIAL of issue, 60 evidence at ; and cases thereon, 61 new trial, 63. verdict on, 63 in Chancery Division, 90, 91 course as to, in County Courts, 102, 103 UNDER-SHERIFF, result of his relation to sheriff in interpleader 80 31 -WHARFINGER, _ his right to interplead, 11, 12 INDEX TO ATTACHMENT OF DEBTS. AFFIDAVIT, in support of Order for examination of judgment debtor, 156 in support of garnishee order nisi, 170 forms of, 194, 196 ANNUITY, when attachable, 160 APPEAL against garnishee order nisi, 170 against order directing issue, 1711 does not lie from summary determination by consent, 176 does not lie from decision of County Court judge, 191 ATTACHMENT OF DEBTS, what it is, and when process was created, 147 who may attach, and when, 161 — 156 means of ascertaining whether it can be adopted, 156 — 158 what debts subject to process, 158 — 162 what debts not subject, 162 — 168 practice in, 170 — 181 in County Courts, 182—192 BANKERS, money in hands of, attachable, 161, 162 BANKRUPTCY of judgment debtor, effect of, on garnishee proceedings, 171, 172 of garnishee, effect of, 181 BILL OF EXCHANGE AND PROMISSORY NOTE, monies to become due under, not attachable, 165 BOND OF INDEMNITY, when not attachable, 165, 166 216 INDEX TO ATTACHMENT OF DEBTS. CHAMBERS, proceedings commenced at, 170 summary decision at, by consent final, 17S COSTS, rules as to, 181, 192 COUNTY COUKTS, tlieir jurisdiction in attachment, 182 procedure therein, 182—192 no appeal from in attachment proceedings, 191 DEBTS, what are attachable, 158 — 162 what are not attachable, 162 — 168 ' tests for deciding whether or not attachable, 158 EXAMINATION of judgment debtor, as to debts due to him, 156, 157 nature of, 157, 158 EXECUTION, when it may issue against garnishee, 174 on Judgment of County Court judge, 191, 192 proceeds of, when attachable, 160, 161 form of waiTaut of in County Coiut, 204 ' EXECUTOR, monies due to executor when attachable, 160 legacy payable by, to judgment debtor, when not attachable, 163, 164 money paid into Court by, not attachable, 167 FOREIGN ATTACHMENT, in Mayor's Court, what it is, 168 cases decided in, 169 FORMS of attachment, proceedings in the High Court, 193 — 199 of proceedings in County Court, 200, 205 GARNISHEE, summoned by order nisi, 170 service of order on, 170, 171 INDEX TO ATTACHMENT OF DEBTS. 217 GAUmSUm.— continued. courses open to, 173 set-off and claims l)y, against judgment debtor, 17 i, 175 set-off by, against judgment creditor, 175| issue between judgment creditor and, 175 suggestion by, as to third party's claim, 176 his duty to suggest, 179 costs of, 181 HALF-PAY, as distinguished from pension, not attachable, 16S ISSUE, when directed, 174 question on, 175 evidence on trial of, 175 proceedings subsequent to, 176 form of, 198 JUDGMENT must have been recovered to entitle judgment creditor to attach, 151, 152 proceedings to be commenced afler, 163 JUDGMENT CREDITOR, who is not a, 152, 153 executor of can attach, 153 when disentitled from attaching, 155, 166 means of, in examining judgment debtor, 156 — 158 course of proceedings to be adopted by, 170 rights of against garnishee, 175 rights of garnishee against, 174, 175 costs of, 181 JUDGMENT DEBTOR, debts can be attached in hands of executors of garnishee indebted to, 154 result if he has been arrested, 155 exam.ination of, 156, et seq. effect of bankruptcy of, 171 state of accounts between garnishee and, 174, 175 (.See JtTDGMiNX Ckeditok, supra.) 218 INDEX TO ATTACHMENT OF DEBTS. LEGACY, when attachable, 163 IIEIT, course when third party claims, 176 form of issue when third party claims, 177 solicitor's, on judgment, 177 — 180 MAYOR'S COURT, process of foreign attachment in, 168, 169 cases on foreign attachment in, 169 attachment in, orerridden hy attachment in High Court, 173 MOKEY IN COURT, when attachable, 160, 361 when not attachable, 164, 165, 167 note on, 167, 168 true i-ule suggested as to, 168 ORDERS, creditor obtaining jnere, not a judgment creditor, 152, 153 to be obtained under Order L., Rule 4, of Rules of 1875, 153 " for examining judgment debtor, 156 nisi, attaching debt, 170 absolute for payment, 173 forms of, 194-5, 197-8-9 PAYMENT, when it discharges garnishee, 173, 180 when it does not, 179 mode of, which garnishee cannot adopt, 180, 181 PAYMENT INTO COURT, when it discharges garnishee, 181 course as to, in County Court, 191 [See Money in Coukt, sitpra.) PENSION, when attachable, 161 PLAINT, proceedings in County Comt commenced by, 189 190 INDEX TO ATTACHMENT OF DEBTS. 219 KENT is attachable, 159 before it is payable qu. (?), 159, 160 BULES of S. C, 1875, order 45, 149—151 order 42, 153 order 50, 153 order 30, 165 of County Court, 1875, order 24, 186—188 1876, orders 8 and 19, 190. SALAEY, when not attachable, 164 SOLICITOR. claim of, to lien on judgment, 177 effect of, 23 & 24 Vict. o. 127, on claim to lien of, 178 struggle of priority between judgment creditor and, 179, 180 SPECIAL CASE, when directed, 176 STATUTES CITED, 1 & 2 Will. IV. C. 58 (" INTEEPMADER AcT, 1831 '), 152 1 & 2 Vict. c. 110, 152 12 & 13 Vict. c. 106 (" Bankbtjptct Act, 1849 "), 171 17 & 18 Vict. c. 104, 168 17 & 18 Vict. c. 125 ("Common Latv Pbocedtjee Act, 1854 " , 147, 182 23 & 24 Vict. c. 126 (" Common Law Peocbduke Act, 1860 ") 147, 182 23 & 24 Viot. c. 127, 178 24 & 25 Vict. c. 134 (" Bankkuptot Act, 1861 "), 171, 181 32 & 33 Vict. c. 71 ("Bankeuptct Act, 1869"), 171 33 & 34 Vict. c. 30, 168 33 & 34 Vict. c. 35, 159 SirMMGNS, calling on judgment debtor to be examined, 156 latter part of order nisi consists of, 170 garnishee in County Court, 190 forms of summons, 193, 201 THIRD PARTY, course when, claims debt, or lien thereon, 176, et seq. course' in County Court as to, 191 220 INDEX TO ATTACHMENT OF DEBTS. TRIAL of issue when directed, 174, 191 evidence thereat, 175, 176 proceedings subsequent to, 176 VERDICT, not attachable, 162, 163 WAGES of seamen not attachable, 168 of servants, &c., not attachable, 168