1840.-Beavan v. Carpenter.

in the defendants.(a) According to these allegations, the trustees of the deed of 1819, have no estate or interest in these shares. I am, for these reasons, of opinion that the demurrer for want of parties cannot be supported, and that the order of the ViceChancellor must be affirmed with costs.

I have thus minutely stated the grounds on which I have come to this conclusion; because, if the allegations in the bill upon which my judgment on the demurrer necessarily depends, be not according to the facts before me at the hearing, there may appear to be ground for supporting an objection for want of parties; and the opinion which I now express cannot have any bearing upon such a case.

*BEAVAN v. CARPENTER.

[*22]

1842: 7th and 12th March.

The Court will not, even before replication, dismiss a bill to perpetuate testimony, for want of prosecution; but will order the plaintiff to reply and examine his witnesses, and procure the examination to be completed by a certain time; and, in default thereof, to pay to the defendant his costs of the suit.

THE bill was filed to perpetuate the testimony of witnesses. More than two months since the answer of one of the defendants was to be deemed sufficient, having elapsed, and the plaintiff not having replied,

Mr. Wetherell, for that defendant, moved to dismiss the bill for want of prosecution. He cited 1 Smith's Pract. 365, and Anon.(b)

Mr. Birkbeck appeared for the plaintiff.

THE VICE-CHANCELLOR said that he never remembered an

(a) The bill in Turner v. Hill also alleged, with respect to this deed, that it was always treated as, and was a complete nullity, and was never acted upon.

1840.-Bignold v. Audland.

order being made to dismiss a bill to perpetuate testimony, for want of prosecution; and that he would have the practice inquired into.

The order made by His Honor, after he had ascertained the practice, was that the plaintiff should file a replication forthwith, and proceed to the examination of his witnesses as prayed by his bill, and procure such examination to be completed on or before a certain day; and that, in default thereof, he should pay, to the defendant, his costs of the suit, to be taxed by the Master in rotation.(a)

[*23]

1840: 4th May.

*BIGNOLD v. AUDLAND.

Where a bill of interpleader is filed by the officer of a company, on behalf of the company, the affidavit annexed, ought to state, not that the plaintiff does not collude, but that, to the best of his knowledge and belief, the company do not collude with the defendants.

Where a bill of interpleader is filed respecting a sum of money on which interest is recoverable, at law, under 3 & 4 Will. 4, c. 42, s. 28, the plaintiff ought to offer, by his bill, to pay the interest.

A. having in his hands a sum of money, which B. and C. claimed adversely to each other, filed a bill, against them, praying that they might interplead respecting the sum. The bill also sought the decision of the Court as to a claim, made by B. to interest on the sum, and raised a question as to the costs of an action which B. had brought to recover the sum. Held that the bill was not sustainable as a bill of interpleader, and that it was multifarious.

THE Norwich Union Life Insurance Society being authorized, by Act of Parliament, to sue in the name of their secretary, the bill in this case was filed by them in the name of their secretary, praying that the defendants might interplead respecting a sum of money for which the life of W. Whitelock, who died in June, 1836, had been insured by the society.

(a) See Wright v. Tatham, ante, Vol. II. p. 459, where the motion to dismiss was made after replication.

1840.-Bignold v. Audland.

The defendants Audland and Moser, who were the executors of Whitelock, demurred to the bill on the following, amongst other grounds: first, because the affidavit annexed to the bill, stated that the plaintiff did not collude with any of the defendants; whereas it ought to have stated that, to the best of the plaintiff's knowledge and belief, the society did not collude with any of the defendants: and, secondly, because, interest on the sum insured being recoverable at law,(a) the bill ought *to have contained an offer, on the part of the society, [*24] to pay interest on that sum as well as the principle of it.

Mr. Jacob and Mr. Walker appeared in support of the demurrer; and

Mr. Anderdon in support of the bill.

THE VICE-CHANCELLOR said that the affidavit ought to have stated not that the secretary, who was the mere nominal plaintiff, did not collude, but that, to the best of his knowledge and belief, the society, who were the real plaintiffs, did not collude with the defendants: and that he thought that where a party from whom a sum of money was due, sought the protection of a court of equity by filing a bill of interpleader, the court ought to be placed, with respect to its power of giving relief, in the same situation as a court of law; and, therefore, that the bill in this case ought to have contained an offer, on the part of the society, to pay the interest recoverable on the sum insured.

(a) By 3 & 4 Will. 4, c. 42, s. 28, it is cnacted that upon all debts or sums certain, payable at a certain time or otherwise, the jury, on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, allow interest to the creditor, at a rate not exceeding the current rate of interest, from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or, if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice, to the debtor, that interest will be claimed from the date of such demand until the term of payment; provided that interest shall be payable in all cases in which it is now payable by law.

1840.-Bignold v. Audland.

1840: 5th December.—The bill was afterwards amended, leave having been given by the court for that purpose.

To the facts above stated, it is necessary to add that, prior to the filing of the original bill, Audland and Moser com[*25] menced *an action, for the sum insured, against one Noverre, who was the survivor of the three directors who had signed the policy; and that, pending the action, Noverre died intestate and insolvent, and letters of administration had not been taken out to his estate.

The amended bill, to which, as well as to the original bill, Audland and Moser, and J. Ward, (to whom Whitelock had assigned the policy in his lifetime, (a) were made defendants, alleged that, though the policy had been signed by Noverre and two other directors, yet the insurance society were liable to pay the sum insured; and that, inasmuch as the society were also bound to indemnify Noverre's estate in respect of all costs and charges incurred in respect of the policy, they were entitled to stand in his place, and to require the defendants to interplead in like manner as he, if living, would have been entitled to: that the society were not liable to pay, nor were Audland and Moser entitled, as they alleged, to recover interest on the sum insured, because the policy was effected before the 3d & 4th W. 4, c. 42, was passed, and the society had made no default in payment of that sum, but had been always ready and willing to pay the same. The amended bill prayed that the defendants might interplead respecting the sum insured, and that the plaintiff might be at liberty to pay it into court; the plaintiff submitting, on behalf of the society, to pay such further sum on account of interest, as the court should direct, and to be answerable for the costs [*26] which Audland and Moser would have *been entitled to, against Noverre or his estate, if the bill had been filed

by him.() Audland and Moser demurred to the amended bill, for want

(a) See Ward v. Audland, C. P. Cooper's Rep. 146, and ante, Vol. VIII, p. 571. (b) One of the objections made in arguing the demurrer to the original bill, was, that it did not offer to pay the costs incurred by Audland and Moser, in the action brought by them against Noverre.

1840.-Bignold v. Audland.

of equity, and for multifariousness, and also because Noverre was not represented on the record

Mr. Jacob and Mr. Walker, in support of the demurrer: Three different questions are raised by this bill. The first is a question of interpleader, that is, to which of the defendants the principal sum due on the policy belongs. The second is, whether the insurance company ought to pay interest on that sum. The third relates to the costs of the action brought, by our clients, against Noverre. We say that we are entitled to be indemnified in respect of those costs: but the other side say that those costs are lost by the abatement of the action. The plaintiff, therefore, seeks to have adverse questions, between him and the defendants, decided in an interpleading suit.

But whatever the nature of the bill may be, it is clearly multifarious; for it raises questions between the plaintiff and the defendants, Audland and Moser, with which the other defendant, Ward, has nothing to do.

Lastly letters of administration ought to have been taken out to Noverre, and the administrator made a party to

the bill. As the bill now stands, it contains a prayer [*27] of interpleader; but the party to be protected by the interpleader is not before the court. The bill, it is true, alleges that Noverre died insolvent; but that is not a sufficient excuse for the absence of his personal representative; the bill ought to have alleged that he did not leave any assets. He may have died insolvent, and yet have left assets sufficient to pay 19s. in the pound, to all parties having claims on his estate.

Mr. Knight Bruce and Mr. Anderdon, in support of the bill: Although this bill may not be, strictly, a bill of interpleader, yet it is one which is conformable to the principles of this court. Notwithstanding three of the directors, of whom Noverre was the survivor, subscribed the policy, yet, by the express terms of it, the funds of the society were to be answerable, to Whitelock's executors, for the sum insured. The society were not the parties to be sued, but their funds were to be made liable through