OF

Practice-Interpleader Issue-Mode of Trial-"Action," meaning of-Judicature Act, 1873, s. 100-Rules of Court-Order I. rule 2; Order XXXVI. rules 2, 3.

An interpleader issue having been directed, the issue was drawn up for trial with a jury, and the trial took place before a Judge and a jury. A new trial having been ordered, the plaintiff gave notice of trial before a Judge alone. The defendant did not give a counter notice, but objected at the trial to the jurisdiction of the Judge to try the case without a jury:-Held, that it was not competent for the plaintiff to give such notice, and that the issue could not be tried by a Judge without a jury.

An interpleader issue is not an action within the meaning of section 100 of the Judicature Act, 1873, and the rules of Court made under that Act.

of sale dated October, 1879, claimed the goods so seized. The sheriff interpleaded; an issue was directed between cution creditor as defendant; the issue the claimant as plaintiff and the exewas prepared, and was as follows: "The said L. Hamlyn affirms and the said S. Betteley denies that certain stock-intrade, household and other furniture, goods, chattels, fixtures and effects, seized in execution by the sheriff of Essex under a writ of fieri facias tested the 12th day of November, 1879, were at the time of such seizure the property of the said L. Hamlyn, as against the said S. Betteley; and it has been ordered by Master Dodgson, pursuant to the statutes in that behalf, that the truth of the matters aforesaid shall be tried by a jury at the next assizes for Essex. Therefore let a jury come," &c. The issue was tried before Denman, J., and a jury, in January, 1880, when the verdict passed for the defendant. A new trial was afterwards ordered, on the ground of misdirection, and the plaintiff gave fresh notice of trial before a Judge alone.

The case came on before Kelly, C.B., when the defendant objected to and protested against the trial of the issue by a Judge without a jury; but the learned Judge overruled the objection, and B

pro

Hamlyn v. Betteley (App.), C.P.

ceeded to try the case, when judgment was given for the plaintiff.

The defendant obtained in the Court of Appeal an order nisi for a new trial, on the ground that the learned Judge had no power to try the case without a jury. The defendant also appealed from the judgment of the learned Judge on the merits.

Murphy and J. G. Witt, for the defendant. The defendant objected to the jurisdiction of the Judge, and it is contended that there was no trial at all, inasmuch as the order was in the usual form, directing the parties to proceed to "the trial of an issue; " and yet, that order being uncancelled, the plaintiff gave notice of trial before a Judge alone. This it was not competent for him to do. Proceedings in interpleader are governed by 1 & 2 Will. 4. c. 58 and 23 & 24 Vict. c. 126. By the former of these statutes provision is made for the trial of feigned issues, and by the latter it is enacted that a Judge may summarily dispose of trifling cases, and may in more difficult cases order a Special Case to be stated. By Order I. rule 2 (1) of the rules of Court, the practice in interpleader is preserved. If it be suggested that the plaintiff had a right by Order XXXVI. rules 2 and 3 (2) to choose his own mode

(1) Rules of Court, Order I. rule 2: "6 With respect to interpleader, the procedure and practice now used by Courts of common law, under the Interpleader Acts, 1 & 2 Will. 4. c. 58, and 23 & 24 Vict. c. 126, shall apply to all actions and all the divisions of the High Courts 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."

(2) Rules of Court, Order XXXVI. rule 2: "Actions shall be tried and heard either before a Judge or Judges, or before a Judge sitting with assessors, or before a Judge and jury, or before an official or special referee with or without asses

3: "Subject to the provisions of the following rules the plaintiff may with his reply, or at any time after the close of the pleadings, give notice of trial of the action, and thereby specify one of the modes mentioned in rule 2; and the defendant may, upon giving notice within four days from the time of the service of the notice of trial, or within such extended time as a Court or Judge may allow, to the effect that he desires to have the issues of fact tried before a Judge and jury, be entitled to have the same so tried,"

of trial, it is submitted in answer that these rules apply to the trial of actions, whereas the trial of an interpleader issue is not the trial of an action, for an action is defined in section 100 of the Judicature Act, 1873, to be "a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of Court;" so that the word "action" cannot apply to an interpleader issue, which is not an action, but a proceeding in or incident to an action; and rule 1 of Order I. further explains what is meant by the word "action" in the rules of Court, and shews that it does not cover an interpleader issue.

An interpleader issue is directed by the Master, and then a feigned issue is settled; this feigned issue must be tried by a jury. This view is strengthened by reference to 8 & 9 Vict. c. 109, which, after referring to the practice of trying questions in the form of feigned issues by stating that a wager was laid, declares that such questions may be tried without such form, and then proceeds, "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;" thus shewing that where there is a feigned issue, there must of necessity be a jury. (See also Schedule 2 to that Act for the form of an issue.)

Willis and Edward Pollock, for the plaintiff. The defendant has waived any objection which he might have taken and insisted on, for he proceeded with the trial and called witnesses, so that he has lost his right to object to the jurisIdiction of the Court-Andrews v. Elliot (3). It is, moreover, contended that the plaintiff had a right to give this notice, and to try the issue before a Judge alone. All the proceedings in interpleader are now subject to the rules by which other trials are governed, for the effect of rule 2 of Order I. (1) is to confer this jurisdiction in interpleader on the divisions of the High Court and to extend it to the Chancery Division. This was necessary, inasmuch as the provisions contained in 1 & 2 Will. 4. c. 58 only applied to the Courts at Westminster, Lancaster and Durham.

(3) 5 E. & B. 502; 25 Law J. Rep. Q.B. 336.

Hamlyn v. Betteley (App.), C.P. [SELBORNE, L.C.-The rules do not give jurisdiction, they regulate the exercise of jurisdiction conferred by statute. COLERIDGE, C.J.-The exercise of the jurisdiction is regulated by section 23 of the Act of 1873, and section 16 of the Act of 1875.]

Rule 2 of Order I. (1) brings interpleader within the rules of Court, so that it is competent for a plaintiff to choose a mode of trial under Order XXXVI. rules 2 and 3 (2), and to give notice of it to the defendant, as was duly and properly done here.

[SELBORNE, L.C.-Is not that tantamount to saying that one action is a proceeding in another action ?]

In McAndrew v. Barker (4), the Master of the Rolls having directed an interpleader issue to be settled, it was tried before him without a jury; the orders made by him were appealed from, but the objection here taken was never suggested.

[COLERIDGE, C.J.-The opinion of the Court there was that interpleader issues are not actions.]

If the plaintiff did not wish to have the trial before a Judge alone he should have given a counter-notice.

Murphy, in reply.-The defendant was not bound to give a counter-notice; he was entitled to rely on the direction in the order as to the mode of trial, which direction the plaintiff could not validly alter or depart from.

SELBORNE, L.C.-We are all of opinion that there must be a new trial. I do not think it necessary to say anything on the question of the alleged waiver. It is well established that a party can in the case even of arbitrations protest against the jurisdiction of a tribunal, and that, if his protest be overruled, he can proceed to prove his case, and afterwards take such steps as may be necessary to set aside the proceedings. In the present case the jurisdiction of the learned Judge was duly protested against, and I cannot agree that it was necessary for the protesting party to withdraw from the case and to take the risk of allowing it to be (4) 47 Law J. Rep. Chanc. 340; Law Rep. 7 Ch. D. 701.

heard as undefended. Nor do I think that the defendant who received this notice of trial before a Judge, without a jury, was bound to give a counter-notice if it was not competent for the plaintiff to give such a notice of trial. The question for decision, therefore, is, whether this notice was one which in the circumstances of this case it was competent for the plaintiff to give. It is not necessary in my view of the case to determine any question as to the proper mode of trying interpleader issues, or any question as to the power of a Judge to direct any particular mode of trial, on any particular questions, under the provisions of rule 6 of Order XXXVI. In the present case the interpleader was strictly statutory. Now the Judicature Acts enact that the procedure and practice used under the Interpleader Acts shall apply to all the divisions of the High Court; there was, therefore, jurisdiction to make the order in pursuance of which this interpleader issue was directed to be tried by a jury. The ques tion then arises, whether any Court has doneanything in the way of regulating the trial of this interpleader. It appears that what I may call the common interpleader order was made, that the parties were directed to settle an issue, and that it was drawn up by them in the usual form, and that it concluded with the words, " It has been ordered pursuant to the statutes on that behalf that the truth of the matters aforesaid be tried by a jury." This it would seem was the construction put on the order by both parties. With respect to the rules of Court it appears that the 2nd rule of Order I. (1) is the only rule which refers in express terms to interpleader; and the effect of that rule may well be that the practice therein referred to may apply to all actions and all the divisions of High Court; and if there is no regulation of any Court to the contrary effect that practice will apply. It has further been suggested that the provisions of rule 3 of Order XXXVI. (2) apply to this case, and that the plaintiff could therefore give notice of trial in any one of the modes mentioned in rule 2 of the same Order (2). It appears to me, however, that this interpleader is not within the rules referred to-that it is not

Hamlyn v. Betteley (App.), C.P.

an action within the definition given in section 100 (5) of the Judicature Act, 1873. I do not find any rule which shews that an interpleader issue is an action: it would seem rather to be an interlocutory proceeding in an action; and if this be so, then this interpleader issue is not an action within the meaning of that word in the rules of Court, so that it was not competent for the plaintiff to give a notice for the trial of the issue in any mode other than that directed by the order in pursuance of which the first trial was held before a Judge and jury. The learned Judge, therefore, had no jurisdiction to try this issue without a jury. The appeal must be allowed, and there must be a new trial. It has been said that the case of McAndrew v. Barker (4) is an authority for the position that interpleader issues can be tried without a jury. I have said that it is not necessary to lay down any general rule, that there was in this case an order that the issue should be tried with a jury, and that, that order standing, it was not competent for the plaintiff to disregard it. It also appears from the report of the case referred to, which is, however, reported with reference to quite another point, that the orders made by the Master of the Rolls were made in the two actions of The Dock Company v. Locke and Barker v. The Dock Company, which were then proceeding in bis Court, so that it cannot be said that what was there done affords any support to the contention of the plaintiff in the present case.

COLERIDGE, C.J. and BRETT, L.J. concurred.

The order was made absolute for a new trial of the interpleader issue, and the plaintiff was ordered to pay all the costs of the order and of the abortive trial. The defendant was permitted to withdraw his appeal on the merits without costs.

Solicitors-Evans & Peacock, for plaintiff; Betteley & Co., for defendant.

(5) Judicature Act, 1873, s. 100: "Action' shall mean a civil proceeding, commenced by writ or in such other manner as may be prescribed by rules of Court."

On the 17th of June, 1880, Master Francis made an order that unless the plaintiff in this action filed his affidavit in answer to certain interrogatories administered by the defendant within seven days of the said order the action should be dismissed.

On the 25th of June the plaintiff filed his affidavit in answer-that is, on the eighth day after the date of the order of Master Francis aforesaid.

On the 9th of July Master Gordon, on the application of the plaintiff, rescinded the order of Master Francis. From this order the defendant appealed to Hawkins, J., in chambers, who adjourned the appeal indefinitely.

On the 15th of July the plaintiff took out two summonses-one to enlarge the time for appealing from the order of Master Francis, and a second to vary the said order by allowing fourteen instead of seven days within which the plaintiff might file his answers.

On the 20th of July these summonses came on for hearing before Hawkins, J., in chambers, who made orders thereon, enlarging the time to appeal, and vary. ing the order as prayed. Hawkins, J., also adjourned the defendant's appeal

summons.

The defendant appealed from the orders of Hawkins, J., and on the 31st of July the Court adjourned the hearing of that appeal, and directed that all the appeals should be heard before the Court on the 4th of November, 1880.