(a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs

and dismiss him from the suit :

or, if it thinks that justice or convenience so require,

(b) retain all parties until the final disposal of the suit :

and, if it finds that the admissions of the parties or other evidence enable it,

(c) adjudicate the title to the thing claimed; or else it may

(d) direct the defendants to interplead one another by filing statements and entering into evidence for the purpose of bringing their respective claims before the Court.

474. Nothing in this chapter shall be taken to enable agents to sue their principals, or tenants to sue their landlords, for When agents and the purpose of compelling them to interplead with tenants may institute interpleader-suits. any persons other than persons making claim through such principals or landlords.

Illustrations.

(a.) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully obtained from him by A, and claims them from B. B cannot institute an interpleader-suit against A and C.

(b.) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels a security for a debt due from himself to C. A afterwards alleges that C's debt is satisfied, and C alleges the contrary. Both claim the jewels from B. B may institute an interpleader-suit against A and C.

See the notes to Sec. 470 as to agents and tenants. It is a settled rule of law, and of equity also, that an agent shall not be allowed to dispute the title of his principal to property which he has received from or for his principal; or to say that he will hold it for the benefit of a stranger. Dixon v. Hamond, 2 B. & Ald., 313; Nicholson v. Knowles, 5 Madd., 47. But this doctrine is to be taken with its proper qualifications. For if the principal has created an interest or a lien on the funds in the hands of the agent in favour of a third person, and the nature and extent of that interest or lien is in controversy between the principal and such third person, then the agent may, for his own protection, file a bill of interpleader, to compel them to litigate and adjust their respective titles to the fund. Smith v. Hammond, 6 Sim., 10; Wright v. Ward, 4 Russ., 215, 220. Snells Principles of Equity, 2nd Edn., 498.

475. When the suit is properly instituted, the Charge of plaintiff's Court may provide for the plaintiff's costs by giving him a charge on the thing claimed or in some other effectual way.

costs.

See Kerrs Inj., p. 131: If an interpleading bill has been properly instituted, and a case for interpleader is made out, the plaintiff is entitled, if there be a fund in Court, to have his costs paid

out of it. Aldrich v. Thompson, 2 Bro. C. C. 149; Hodges v. Smith, 1 Cox, 357; Paris v. Gilham, Coop. 56; Cowtan v. Williams, 9 Ves. 107; Campbell v. Salomons, 1 Sim. & St. 462. If there is no fund in Court, costs will be given against the party who occasioned the suit. Aldridge v. Mesner, 6 Ves. 419; Glynn v. Locke, 3 Dr. & War. 11; Cochrane v. O'Brien, 2 J. & L. 380. Costs will not, however, be allowed of any proceedings which may have been taken in the suit that are productive of needless expense. Sieveking v. Behrens, 2 M. & C. 581; Crawford v. Fisher, 1 Ha. 436; Symes v. Magnay, 20 Beav. 47; Hale v. Saloon Omnibus Co., 4 Drew. 492; Jacobson v. Blackhurst, 2 J. & H. 486.

If the case for a bill fails, it will be dismissed with costs as against the plaintiff, Cochrane v. O'Brien, 2 J. & L. 380; Cook v. Earl of Rosslyn, 1 Giff. 167, except the suit has been adopted by the defendants, in which case plaintiff will be allowed his costs. Myers v. United Guarantee Society, 7 D. M. & G. 112. If the case for interpleader is partly made out and partly fails, the bill will be dismissed with costs as against the defendant who is successful, but without costs as against the defendant who occasioned the suit. Hoggart v. Cutts, Cr. & Ph. 197; Cochrane v. O'Brien, 2 J. & L. 380; Glynn v. Locke, 3 Dr. & War. 11; Desborough v. Harris, 5 D. M. & G. 439. The costs of the defendants do not necessarily follow the result of the suit, but are in the discretion of the Court. Meux v. Bell, 1 Ha. 73, 98. Sometimes no costs will be given on either side. Ib. See Cook v. Earl of Rosslyn, 1 Giff. 167. At other times one defendant will be allowed his costs against another. Coutan v. Williams, 9 Ves. 107; Mason v. Hamilton, 5 Sim. 19; v. Edmunds, 5 Ha. 314; Jacobson v. Blackhurst, 2 J. & H. 486. On dismissal of a bill, the Court cannot decree costs as against a defendant whose misconduct occasioned the suit. Cochrane v. O'Brien, 2 J. & L. 380. See further on the subject, Morg. & Davy on Costs, 152-155. See, as to orders and decree in an interpleading suit, Seton on Decrees, p. 962; Hodges v. Smith, 1 Cox, 357; Hoggart v. Cutts, Cr. & Ph. 197; Glynn v. Locke, 3 Dr. & War. 25; Smith v. Hammond, 6 Sim. 12; Fenn v. Edmunds, 5 Ha. 314; Bruce v. Elwin, 9 Ha. 294.

Fenn

defendant is suing

stakeholder.

476. If any of the defendants in an interpleader-suit is actually suing the stakeholder in respect of the subject of such suit, Procedure where a the Court in which the suit against the stakeholder is pending shall, on being duly informed by the Court which passed the decree in the interpleadersuit in favour of the stakeholder, that such decree has been passed, stay the proceedings as against him; and his costs in the suit Costs. so stayed may be provided for in such suit; but if, and so far as, they are not provided for in that suit, they may be added to his costs incurred in the interpleader-suit.

PART IV.

PROVISIONAL REMEDIES.

CHAPTER XXXIV.

OF ARREST AND ATTACHMENT BEFORE JUDGMENT.
A.-Arrest before Judgment.

When plaintiff may

apply that security be taken.

477. If at any stage of any suit, other than a suit for the possession of immoveable property, the plaintiff satisfies the Court by affidavit

that the defendant, with intent to avoid or delay the plaintiff, or to avoid any process of the Court, or to obstruct or delay the execution of any decree that may be passed against him,

(a) has absconded or left the jurisdiction of the Court, or

(b) is about to abscond or to leave the jurisdiction of the Court, or
(c) has disposed of or removed from the jurisdiction of the Court his

property or any part thereof, or

that the defendant is about to leave British India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,

the plaintiff may apply to the Court that security be taken for the appear. ance of the defendant to answer any decree that may be passed against him in the suit.

Secs. 74 and 80 of the old Code have been amalgamated, and one section now provides for two species of cases. It is founded on Sec. 1 of the Absconding Debtors' Arrest Act, 1851.

This sub-department of the Code provides a procedure analogous to the procedure until lately known in England as 'arrest upon mesne process.' Formerly the writ of 'capias' was issuable as the original or first process in certain actions and at the will of the plaintiff, but by the 1 & 2 Vic. c. 110, s. 2, it was enacted that all personal actions in the superior courts shall be commenced by writ of summons. And by the same statute it was enacted that no person shall be arrested upon mesne process in any civil action, except in certain cases where the action is in a superior court. The plaintiffs affidavit needed to show, if he wished to procure such process to be issued:-(1.) That he had a right to recover the

sum of £20, as a debt or damages, from the defendant; (2.) That the defendant was about to quit England unless he should be forthwith apprehended; and (3.) That a writ had issued for the recovery of the demand. See Lush, 687-754. By the Debtors' Act, 1869, mesne process was abolished, and in its place was given power to arrest a defendant, upon the application of a plaintiff, who proves that he has a good cause of action against the defendant to the amount of fifty pounds, and the defendant is likely to leave England to the prejudice of the plaintiff in the prosecution of his suit.

For the possession of immoveable property.-Observe the substitution of this restrictive term for the old words "land or other immoveable property."

By affidavit. In the first instance: then under Sec. 478 there must be a sufficient investigation.

In England, as appears from the old books, the declarant must set out in detail facts and circumstances sufficient for the purpose of showing that the defendant is about to quit England unless he be forthwith apprehended. Bateman v. Dunn, 7 D. P. C. 105; 5 B. N. C. 49. Mere suspicion will not do. Harvey v. O'Meara, 7 D. P. C. 725. But the deponent need not pledge his belief, it is enough for him to swear to facts sufficient to lead the judge to believe that the defendant is about to quit, &c. Hargreaves v. Hayes, 5 E. & B. 272; 24 L. J., Q. B. 281; Willis v. Snook, 8 M. & W. 147. If he speaks to information and belief he should give the name and description of his informant. Gibbons v. Spalding, 11 M. & W. 173.

Now by the 6th section of the Debtors' Act, 1869, it is made necessary that the plaintiff shall prove at any time before final judgment by evidence on oath "that there is probable cause for believing that the defendant is about to leave England unless he be apprehended, and that the absence of the defendant from England will materially prejudice the plaintiff in the prosecution of his action."

With intent.-The 'intent' must be proved by trustworthy evidence and the power conferred by this part of the Code exer