the policy, interest, shipment of cargo and loss. The interrogatories refused were 1862, TAMVACO 1. Did you execute a policy for 6,000l. on a cargo of and Others wheat from Odessa, &c.? 2. Had any such cargo been purchased by you, and if so, state from whom and at what time? 3. Were the persons from whom you purchased connected with you in business? The whole scope of these interrogatories is too wide, and they ought to be disallowed altogether, notwithstanding one or two standing alone might have been unobjectionable; Robson v. Crawley (a). CROMPTON, J.-The interrogatories do not seek to establish any case which the defendants put forth as their defence to the action. v. LUCAS and Others. No order. (a) 2 H. & N. 761. Judges' Chambers, coram Wilde, B. BEST v. HEYES. Trinity Term. SUMMONS, on the part of the defendant, for an inter- In an action pleader order. The action was against an auctioneer, by his employer, to recover the balance of the proceeds of certain goods which the plaintiff had entrusted to him to sell. The sale had realized 6107., and in the affidavit of the defendant it appeared that before the claim he had paid to the plaintiff 300%., and that, deducting a sum of 481. for his commission, &c., and 251. for rent levied by the landlord, and some small charges, there remained a sum of 2331. On the 5th against an auctioneer by his employer, for the proceeds of goods entrusted to him for sale, he having sold after notice of a claim by a third party, and claiming a lien on a ceras portion of tain sum only the proceeds, for his com mission and expenses: of April he received notice of a claim from one J. Gallagher (and it subsequently turned out that he had received notice Held, entitled of the claim before he sold), on which he refused to pay pleader order the plaintiff the residue thus remaining in his hands. as to the re VOL. III. I F.F. to an inter sidue. 1862. BEST V. HEYES. On the 23rd of April this action was brought, and on the 10th of May, before pleading, the defendant made his affidavit, for the purpose of obtaining the order of interpleader, and in this affidavit stated that he claimed no interest in the sum of 2331., and that he believed a suit in Chancery was pending between the claimant and the plaintiff relating to the furniture and effects sold; and he denied collusion with the claimant. The claimant, in support of the claim, made an affidavit that the goods were purchased by the plaintiff for her, on her sole account, but in his name, under an order of the Court of Chancery, as her trustee; that the price paid was 8911., of which she had paid him 60l., and arranged to pay the rest by instalments, &c. ; that he had been overpaid; that the goods had not been out of her possession until seized and sold by him; that she had instituted a suit in Chancery, to restrain him from selling; and that during her absence he had seized and sold. The affidavit of the plaintiff, in answer, went to show that he had bought the furniture for himself, under the order in Chancery; that the claimant was a pauper and prisoner in gaol; and that the claim was colourable. On these facts, WILDE, B., made an order, that as to the sum of 2331., in which the defendant claimed no interest, the parties do proceed to the trial of an issue, in which the present plaintiff shall be plaintiff, and the claimant shall be defendant, and the question to be tried shall be, whether the proceeds of the sale of the goods claimed are the property of the claimant as against the plaintiff, and that the said sum be paid into Court, to abide the event of the issue; and that the plaintiff and the claimant be barred as against the defendant (a). (a) Morgan Lloyd, on the part of the plaintiff, moved in T. T. for a rule to rescind this order, as made without authority under the Interpleader Act; the claimant asserting an interest in the subject matter of the suit. Where there is anything to be tried as between the parties to the action, interpleader does not apply, as where an auctioneer claims an interest, even for his commission; Bradick v. Smith, 9 Bing. 84; Mitchell v. Hayne, 2 Sim. & Stu. 63. [POLLOCK, C. B. -There is a distinction between claiming a lien on the whole (as in those cases) and only on a part, as here. Why should not separate sums of money be as distinct for this purpose as goods and chattels? How is this case to be distinguished from one in which goods are sued for, and the defendant claims some and does not claim the rest?] He claims commission on the whole. [MARTIN, B.-But not a lien on the whole. He merely claims a sum of money out of the entire sum, he claims no interest in the whole, not in any sense which gives right to retain the whole. He only claims part of the money. BRAMWELL, B. And, indeed, strictly speaking, he does not even do that, but only sets up a set-off as to part, or a claim to deduct. That is not claiming an interest in the subject matter, in the sense which excludes interpleader.] The defendant has no right to sever the sum. [MARTIN, B.-Such orders are frequently made at Chambers. POLLOCK, C. B. Constantly. MARTIN, B.-Nor is there any substantial objection to them.] The real objection, no doubt, in the case is, that the claimant is a pauper, and the plaintiff, when he succeeds, will not get his costs. [BRAMWELL, B. That has nothing to do with interpleader.] There are other objections to the order, besides the one already urged, that the defendant is a party. He cited Story, Eq. Jur. 154; "A bill of interpleader always supposes that the plaintiff is the mere holder of the stake, which is equally contested by the other parties, and as to which the plaintiff stands wholly indifferent between them; so that when their respective rights are settled, nothing further remains in controversy." He also cited, to show that interpleader does not lie where there is a question as to amount, Diplock v. Hummond, 23 L. J., Eq. 552; nor where the plaintiff is agent of one of the parties, Crawshay v. Thornton, 7 Sim. 391; 2 Mylne & Craig, 1, 22; Glyn v. Duesbury, 11 Sim. 147; Patorni v. Campbell, 12 M. & W. 277; Lindsey v. Barron, 6 C. B. 291; James v. Pritchard, 7 M. & W. 276; Slaney v. Sidney, 14 M. & W. 800. Nor, again, does interpleader lie where the clairn, as here, is equitable; Putney v. Trigg, 3 Jur. 672; Roach v. Wright, 8 M. & W. 155; Baker v. The Bank of Australasia, 26 L. J., C. P. 93. As to the pendency of a suit in Chancery, that Court can interfere if it thinks proper, but that is no ground for interpleader. There could be no bill of interpleader. [POLLOCK, C. B.-Is it quite clear that there can only be interpleader at law, where it might be at equity?] So it was always held. [CHANNELL, B.-Before the C. L. P. Act of 1860, but that Act seems to have extended the scope of interpleader.] Cur, ad, vult. On the last day of term (June 17) BRAMWELL, B., said the plaintiff might have a rule, if he pressed for An order made SUMMONS to stay proceedings in the action, on the under sect. 11 of the C. L. P. ground that the parties had agreed to refer the matters in appearing that dispute to arbitration. Act, 1854, it the parties had gone on deal. ing under the terms of a for mer agreement, which contained a clause for reference to arbitration. This was an action by the executor of a deceased supercargo, to recover commission due to the testator by the defendant on the purchase of palm oil in the Bonny River. It appeared that in the year 1851 the testator entered into an agreement with the defendant to act as supercargo to a vessel trading in the Bonny River, and under the agreement, which was executed by both parties, he was to receive certain commission on palm oil purchased by him on that particular voyage. In the agreement was an arbitration clause, agreeing to submit matters which should be in difference to arbitration of a person to be chosen. In 1853 the testator went out again to Africa, and on that occasion the agreement was endorsed with similar terms. In 1855 there was a similar indorsement, embracing the previous agreement. In 1860, which was the voyage on which the testator died, the defendant, previous to his leaving Liverpool, wrote him a letter, in which was the following expression:-"This voyage to be on the same terms as the former one." There was no reply by the testator, who proceeded on the voyage after the receipt of the letter. Dodgson, for the defendant, argued that the case was within section 11 of the Common Law Procedure Act, 1854; that the testator's act following the letter was an acceptance of its terms binding on him and his repre sentatives. H. F. Gibbons, contra, objected that the statute required an instrument in writing, and there was no writing in this case to which the testator was a party. To deprive the plaintiff of their common law right to try by a jury, there ought to be express words, which were here wanting. KEATING, J., however, thought that as the parties had evidently gone on dealing on the terms of the original agreement, which contained a clause for referring disputes to arbitration, the case was fairly within the enactment; therefore, Order made (a). (a) See Wickham v. Harding, 28 L. J., Exch. 215, S. P. 1862. HATTERSLEY V. HATTON. LEVERSON v. SCHWABACHER. SUMMONS for the plaintiff to show cause why, on the Order made for delivering up of property (on money into payment by the defendant of 1601. into Court in lieu of bail, he should not deliver up to the defendant two payment of emeralds and a certain paper writing, on the ground that they were obtained from the defendant by an abuse of the process of the Court. The facts were as follows:-Defendant was a foreign diamond merchant, who had had dealings with the plaintiff in the way of his trade. In their monetary transactions the balance had been sometimes for and sometimes against the defendant, and at the time in question it was uncertain Court) on ground of abuse of process by the plaintiff. |